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THE  COURTS 

OF  THE 

STATE  OF  NEW  YORK 


THEIR  HISTORY,  DEVELOPMENT 
AND  JURISDICTION 


Embracing  a  complete  history  of  all  the  Courts  and 

Tribunals  of  Justice,  both  Colonial  and  State, 

established  from  the  first  settlement  of 

Manhattan  Island  and  including  the 

status  and  jurisdiction  of  all  the 

Courts   of  the    State   as 

now  constituted 


BY 

HENRY  W.   SCOTT 

of  the  New  York  Bar. 

Author  of  "  Scott's  Probate  Law  and  Practice,"  "  Distinguished  Ameri- 
can Lawyers,"  "  Commentaries  on  the  Evolution  of  Law," 
"The  Evolution  of  Law,  A  Historical  Review," 
"  Uniform  Marriage  and  Divorce,"  etc.,  etc. 


New  York 

WILSON  PUBLISHING  CO. 

1909 


Entered  according  to  Act  of  Congress  in  the  year 

one  thousand  nine  hundred  and  nine 

by 

HENRY  W.  SCOTT 

In  the  Office  of  the  Librarian  of  Congress,  at 

W^ashington,  D.  C. 


All  rights  reserved 


To  the  Bench  and  Bar  of  the  State 

of  New  York  this  volume 

is  respectfully 

DEDICATED. 


!Vll6I:SiO 


Digitized  by  tine  Internet  Arciiive 

in  2008  witii  funding  from 

IVIicrosoft  Corporation 


littp://www.arcliive.org/details/courtsofstateofnOOscotricli 


PUBLISHERS'    ANNOUNCEMENT, 


Firmly  relying  on  the  merit  of  the  publication 
itself,  there  is  little  that  the  publishers  could  add  by 
way  of  commendation. 

In  all  justice  to  so  thorough  and  conscientious  a 
production,  it  becomes  our  duty  to  author  and 
reader  to  affirm  unrestrainedly,  and  with  full 
knowledge  of  the  significance  of  such  an  affiLi^mance, 
that  the  entire  field  in  view,  has  been  fully  covered. 

Should  a  demand  arise  for  a  more  elaborate  and 
exhaustive  treatise  on  a  theme  which  has  hitherto 
been  wholly  neglected,  we  are  authorized  to  assure 
the  public  of  a  complete  new  edition,  more  fully 
revised  and  amplified,  in  deference  to  the  interest 
awakened  in  a  subject  dear  to  all  classes  of  law- 
abiding  American  citizens.  The  courts  of  the  Em- 
pire State,  the  great  emporium  of  American 
commerce,  the  high  ground  they  have  ever  main- 
tained, cannot  be  too  fully  discussed. 

The  contracts  existing  between  the  publishers  of 
the  present  edition  and  the  author,  have  made  pro- 
vision for,  if  not  anticipated  such  a  contingency, 
and  await  only  the  judgment  of  the  literary  public, 
to  meet  their  expectations. 

Be  it  known,  however,  that  this  statement  is  made 
with  much  reservation.     Once  whetted,  the  public 


PUBLISHERS     ANNOUNCEMENT. 

taste  may  require  further  catering,  such  is  the 
publishers'  experience  with  those  who  read,  and 
browse  in  pastures  new. 

No  impeachment,  however,  is  to  be  inferred  on 
this  score,  as  to  what  has  been  already  said  of  the 
intrinsic  merits  of  the  learned  production,  it  has 
been  our  honor  and  privilege  to  publish.  Incom- 
pleteness, could  any  be  imputable,  can  be  charged 
only  to  the  originality  and  twofold  purport  of  a 
work  which  may  have  received  but  its  initial 
impetus. 

We  again  reiterate  what  has  been  said,  and  give 
reassurance  that  it  will  be  found  lacking  in  nothing 
of  interest  to  lawyer  or  laymen,  if  reasonable  allow- 
ance be  made  for  abbreviations  of  the  text  which 
were  unavoidable. 

WILSON  PUBLISHING  CO. 
New  York^  January,  1909, 


PREFACE 


If  this  work  shall  accomplish  no  other  purpose  it 
is  safe  to  aver  that  it  will  pave  the  way  for  a  more 
thorough  exploration  and  treatment  of  the  subject 
within  the  next  few  years.  How  a  history  of  the 
courts  of  the  great  commonwealth  of  New  York 
could  so  long  be  neglected  will  ever  remain  a 
dubious  question  to  all  whom  the  subject  interests. 

In  the  year  1896,  the  author,  who  was  reared  and 
educated  in  the  West  came  to  New  York  City  as 
counsel  for  legal  and  financial  interests  in  that  part 
of  the  country,  and,  also,  to  engage  somewhat  in  the 
general  practice.  It  may  be  stated,  as  one  of  the 
causes  leading  up  to  the  production  of  this  work, 
that  one  of  the  first  things  to  occupy  his  attention 
was  a  search  for  a  treatise  from  which  he  could 
familiarize  himself  with  the  history,  development 
and  jurisdiction  of  the  courts  of  the  State  in  which 
he  was  to  engage  in  the  practice  of  his  profession 
and  which  was  to  become  his  future  home,  with  the 
astonishing  result  that  there  was  nothing  to  be 
found.  This  fact,  however,  never  abated  the 
research,  but  on  the  contrary,  stimulated  activity  in 
that  direction,  which  has  been  carried  on  through 
all  the  intervening  years,  until  early  in  the  year  of 
1908  the  author  began  the  preparation  of  the  final 


PREFACE. 

manuscript,  but  soon  discovered  that  the  work  could 
not  be  embraced  in  less  than  two  large  volumes,  if 
the  detail  contemplated  in  gathering  the  material 
were  to  be  carried  out. 

It  was  then  concluded  after  sufficient  considera- 
tion that  the  subject  could  be  reasonably  covered 
by  a  careful  condensation  of  the  matter  to  the 
number  of  pages  here  presented.  Should  there  be 
a  demand  for  a  more  exhaustive  treatment,  the 
author  has  the  material  at  hand,  and  can  supply  the 
same  within  a  few  months. 

However,  in  the  preparation  of  this  volume,  no 
pains  or  efforts  have  been  spared  and  the  author's 
aim  has  been  to  meet  the  need  for  its  production, 
and  shed  light  on  the  early  origin  of  the  Courts  of 
the  State  of  New  York,  and  as  now  organized  and 
existing. 

The  scheme  of  its  treatment  was  to  devise  a  suit- 
able and  comprehensive  plan  by  which  the  historical 
or  narrative  portion  of  such  a  subject  could  be 
analyzed  and  differentiated  from  its  strictly  legal 
and  professional  aspects.  Here  an  obstacle  was 
encountered  in  the  fact  that  from  the  first  settle- 
ment on  Manhattan  Island,  on  through  the  colonial, 
and  most  of  the  constitutional  period,  the  courts 
were  so  interwoven  with  the  general  colonial  and 
state  governments  as  to  render  such  a  distinction 
extremely  hazardous  and  difficult. 

In  a  large  measure  this  feature  has  been  met  and 
successfully    overcome;    but    in    order    to    insure 


PREFACE. 

against  even  a  partial  failure  of  the  object  in  view, 
tne  author  has  collated  in  Part  III,  a  brief  and 
separate  treatment  of  each  court  from  its  inception, 
and  so  on  chronologically,  to  the  present  time.  In 
that  part  are  to  be  found  all  courts,  and  a  list  of 
those  codified  under  the  present  State  Constitution, 
as  well  as  the  local  courts  throughout  the  State. 
Part  I  covers  the  colonial  period;  Part  II,  the  con- 
stitutional period,  and  Part  III  includes  a  chrono- 
logical compilation  of  each  court  separate  and 
distinct,  to  its  present  status  and  jurisdiction,  or  to 
its  final  abolition. 

In  conclusion  the  author  would  submit  that  if  in 
dealing  with  so  varied  and  comprehensive  a  subject, 
he  has  laid  himself  or  his  subject  open  to  criticism, 
he  may  receive  a  fair  measure  of  indulgence  and 
forbearance,  as  he  feels  that  at  least,  he  has  opened 
the  way  to  future  effort  and  improvement. 

HENRY  W.  SCOTT. 
New  York^  January,  1909. 


TABLE  OF   CONTENTS 


PART  I. 

Colonial  Period-(1623-1777). 


CHAPTER  I. 

STATUS  OF  LAW  IN  THE  PROVINCE  OF  NEW 
NETHERLANDS  UNDER  THE  DUTCH. 

PAOE 

Aborigines — Advent  of  the  Dutch — Purchase  of 
Manhattan  Island — The  States  General — Col- 
ony OF  New  Amsterdam — Governor  and  Council 
— ^Patroons — ^Administration  of  Kieft — Chak- 
TER  OF  Privileges — Popular  Discontent — Re- 
call OF  Kieft — New  Court  under  Stuyvesant — 
The  Body  of  Nine  Men  —  Unpopularity  of 
Stuyvesant — Burgher  and  Schepens  Court — 
Political  Conditions — Court  of  Schout,  Burgo- 
masters AND  Schepens — Procedure  of  the  Court 
— ^Alternative  Procedure — Rules  of  Evidence 
— Proceedings  after  Judgment — Jurisdiction — 
Additional  Powers — Statutory  Fees — Criminal 
Jurisdiction — ^Additional  Courts — Final  Occu- 
pation AND  Abdication  of  the  Dutch 29-52 

CHAPTER  11. 

EARLY  ENGLISH  SOVEREIGNTY. 

Basis  of  English  Rule — Colonial  Conditions — In- 
ternational Claims  to  New  York — Conflicting 
Land  Titles — Territory  Claimed  by  England — 
Administration  of  Nicolls — Nicolls'  Tact — 
Peaceable  Surrender  of  New  Amsterdam — De- 
fection OF  Dutch  Officials — Policy  of  Nicolls 

11 


TABLE  OF  CONTENTS. 

PAQB 

— Discontent  of  English — Hempstead  Conven- 
tion— Duke's  Laws — Animosity  of  English — 
Scope  of  the  Royal  Charter — Organization  of 
Judicature  under  the  Hempstead  Convention — 
Courts  of  the  Three  Ridings — Municipal  Court 
OF  the  City  of  New  York — Powers  Conferred 
ON  Mayor  and  Aldermen — Mayor's  Court  ....  53-68 

CHAPTER  HI. 

COURTS  ESTABLISHED  BY  HEMPSTEAD  CON- 
VENTION. 

Court  of  Assize — First  Session — Special  Func- 
tions OF  THE  Court — Denial  of  Petition  for 
Popular  Assembly  —  The  Duke's  Laws  —  The 
Three  Ridings — Their  Government — Courts  of 
Sessions — Jurisdiction — Jury  Trials — Method 
OF  Trial — Justices  of  the  Peace — Appeals — 
How  Taken 69-80 

CHAPTER  IV. 

COURT  OF  ASSIZE. 

Origin — Jurisdiction — English  Discontent — Pop- 
ular Assembly  Disapproved — Personnel  and 
Terms  of  Court — Functions  of  thiJ  Court — 
Amendments — Fees — Extant  Records — Duties 
OF  the  Secretary — Public  Record — Remarks  81-88 

CHAPTER  V. 

NICOLLS  TO  DONGAN  (1673-1683). 

The  Mayor's  Court — Wise  Policy  of  Nicolls — 
Procedure  of  Court  —  Form  of  Judgment  — 
Dutch  Custom  of  Nominating  Magistrates — 
Dutch  Re-occupation  —  Final  Abdication  — 
Duke's  Title — The  Duke's  Policy — Changes 
Introduced  by  Andros — The  Book  of  Laws — 
Certain  Courts  Re-established — Legal  Reform 

12 


TABLE  OF  CONTENTS. 

PAOK 

— New  Charter — The  Early  Colonial  Bar — 
Laymen  as  Counsel — Barratry  and  Champerty 
— Rules  and  Regulations 89-100 

CHAPTER  VI. 

PROGRESS  OF  LAW  UNDER  GOV.  DONGAN. 

Appointment  of  Dongan  —  Popular  Assembly  — 
Terms  of  Courts  of  Sessions — Oyer  and  Ter- 
miner— Court  of  Chancery — Events  during 
Dongan's  Administration  —  Abolition  of  the 
Assembly — New  Commission — Court  of  Judica- 
ture —  Extended  Jurisdiction  —  Dongan*s  Re- 
port— Dongan  Charter — Two-fold  Function  of 
Mayor's  Court  —  Minor  Courts  —  Recorder's 
Court — Discontinuance  of  Oyer  and  Terminer 
— Change  of  Dynasty — Two  Parties 101-114* 

CHAPTER  VII. 

GOVERNOR  SLOUGHTER. 

General  Assembly  —  Results  Accomplished  — 
Courts  of  Judicature — Court  Record — ^Addi- 
tional Powers — Governmental  Supervision  of 
Lawyers  —  Appellate  Procedure  —  Martial 
Court 115-120 

CHAPTER  VIII. 

THE  SUPREME  COURT. 

Creation  of  the  Court — Original  Act  of  Estab- 
lishment— Foundation — Body  of  Nine — Court 
OF  Assize — Courts  of  Judicature — Courts  of 
Oyer  and  Terminer — Circuit  Courts — Special 
Terms  of  Court — ^Amended  Procedure — Ad- 
ditional Mention — Salary — Chief-Justice  Dud- 
ley— Successive  Chief-Justices — Chief-Justice 
Attwood — ^LoRD  Cornbury's  Letter — Different 
Chief-Justices — Tenure  of  Office — Instability 

13 


TABLE  OF  CONTENTS. 

PAGE 

— Discontent  of  English — Hempstead  Conven- 
tion— Duke's  Laws — Animosity  of  English — 
Scope  of  the  Royal  Charter — Organization  of 
Judicature  under  the  Hempstead  Convention — 
Courts  of  the  Three  Ridings — Municipal  Court 
OF  the  City  of  New  York — Powers  Conferred 
on  Mayor  and  Aldermen — Mayor's  Court.  .  .  .53-68 

CHAPTER  III. 

COURTS  ESTABLISHED  BY  HEMPSTEAD  CON- 
VENTION. 

Court  of  Assize — First  Session — Special  Func- 
tions OF  THE  Court — Denial  of  Petition  for 
Popular  Assembly  —  The  Duke's  Laws  —  The 
Three  Ridings — Their  Government — Courts  of 
Sessions — Jurisdiction — Jury  Trials — Method 
OF  Trial — Justices  of  the  Peace — Appeals — 
How  Taken 69-80 

CHAPTER  IV. 

COURT  OF  ASSIZE. 

Origin — Jurisdiction — English  Discontent — Pop- 
ular Assembly  Disapproved — Personnel  and 
Terms  of  Court — Functions  of  thfI  Court — 
Amendments — Fees — Extant  Records — Duties 
of  the  Secretary — Public  Record — Remarks  81-88 

CHAPTER  V. 

NICOLLS  TO  DONGAN  (1673-1683). 

The  Mayor's  Court — Wise  Policy  of  Nicolls — 
Procedure  of  Court  —  Form  of  Judgment  — 
Dutch  Custom  of  Nominating  Magistrates — 
Dutch  Re-occupation  —  Final  Abdication  — 
Duke's  Title — The  Duke's  Policy — Changes 
Introduced  by  Andros — The  Book  of  Laws — 
Certain  Courts  Re-established — Legal  Reform 

12 


TABLE  OF  CONTENTS. 

PAGB 

— New  Charter — The  Early  Colonial  Bar — 
Laymen  as  Counsel — Barratry  and  Champerty 
— Rules  and  Regulations 89-100 

CHAPTER  VI. 

PROGRESS  OF  LAW  UNDER  GOV.  DONGAN. 

Appointment  of  Dongan  —  Popular  Assembly  — 
Terms  of  Courts  of  Sessions — Oyer  and  Ter- 
miner— Court  of  Chancery — Events  during 
Dongan's  Administration  —  Abolition  of  the 
Assembly — New  Commission — Court  of  Judica- 
ture —  Extended  Jurisdiction  —  Dongan's  Re- 
port— Dongan  Charter — Two-fold  Function  of 
Mayor's  Court  —  Minor  Courts  —  Recorder's 
Court — Discontinuance  of  Oyer  and  Terminer 
— Change  of  Dynasty — Two  Parties 101-114 

CHAPTER  VII. 

GOVERNOR  SLOUGHTER. 

General  Assembly  —  Results  Accomplished  — 
Courts  of  Judicature — Court  Record — ^Addi- 
tional Powers — Governmental  Supervision  op 
Lawyers  —  Appellate  Procedure  —  Martial 
Court 115-120 

CHAPTER  VIII. 

THE  SUPREME  COURT. 

Creation  of  the  Court — Original  Act  of  Estab- 
lishment— Foundation — Body  of  Nine — Court 
OF  Assize — Courts  of  Judicature — Courts  of 
Oyer  and  Terminer — Circuit  Courts — Special 
Terms  of  Court — ^Amended  Procedure — Ad- 
ditional Mention — Salary — Chief-Justice  Dud- 
ley— Successive  Chief-Justices — Chief-Justice 
Attwood — Lord  Cornbury's  Letter — Different 
Chief-Justices — Tenure  of  Office — Instability 

13 


TABLE  OF  CONTENTS. 

PAGK 

OF  Office — Innovation  Introduced  by  Gov- 
ernor Clinton — Constitutionality  of  Office  of 
Judge — Office  Rendered  Unattractive — ^Ac- 
quiescence in  Court  Custom  —  Chief-Justice 
Delancey — Colo  nial  Aristo  crac y — Character- 
istics OF  THE  Bench — Judges'  Salaries — Statu- 
tory Terms  of  Court — Terms  of  Court  Changed 
—  Additional  Powers  —  Fees  —  Jurisdictional 
Limitations — Discouragement  of  Litigation — 
Remedial  Legislation  —  Debtors  —  Insolvent 
Debtor's  Act — Act  Amended — Constitutional- 
ity of  King's  Prerogative 121-148 

CHAPTER  IX. 

COURT  OF  CHANCERY. 

Early  Equity  Jurisdiction — Equity  Jurisdiction 
AND  Procedure  of  Existing  Courts  —  Early 
Chancery — Jurisdiction  in  Equity — Duration 
OF  THE  High  Court  of  Chancery — Establish- 
ment OF  A  Court  of  Chancery — Opposition  to 
Court  of  Chancery — Grounds  of  Opposition — 
Arbitrary  Action  of  Phillipse  —  Nature  of 
Grievance  —  Revision  of  Court  —  Agitation 
AGAINST  Court — Action  of  Bench  and  Bar — 
Petition  to  Governor  Clarke  —  Successive 
Chancellors — Dunmore's  Dilemma — Master  of 
THE  Rolls — Character  of  the  Chancellors — 
Court  Minutes 149-166 

CHAPTER  X. 

SURROGATE  AND  PROBATE  COURT. 

Dutch  Period  —  Orphan  Masters  —  Probate  of 
Wills — Further  Enactments — Probate  Pro- 
cedure— Origin  of  Term  "  Surrogate  " — Juris- 
diction OF  Prerogative  Court — The  Court  of 
Probates 167-172 

14 


TABLE  OF  CONTENTS. 

CHAPTER  XI. 
THE  COURT  OF  EXCHEQUER. 

PAGE 

Early  Exchequer  Business — Rip  Van  Dam's  Case 
— Opposition  to  Court  of  Exchequer — Public 
Debate — Intensity  of  Popular  Feeling — Trial 
OF  Zenger 173-178 

CHAPTER  XII. 

CRIMINAL  COURTS. 

Early  Criminal  Courts — Court  of  Oyer  and  Ter- 
miner— Criminal  Court  in  New  York  City — 
Procedure — Court  Obloquy — Leisler's  Trial — 
Opposing  Factions — Influence  and  Effect  of 
Zenger*s  Trial — Colonial  Legislation — Juris- 
dictional Act 179-186 

CHAPTER  XIII. 

COURT  OF  ADMIRALTY. 

Origin — Temporary  Prize  Court  of  Admiralty — 
Court  of  Admiralty  Duly  Constituted — Att- 
wooD,  Special  Judge  of  Admiralty — Enlarged 
Jurisdiction — Marine  Commission — Conditions 
IN  the  Colony — Appellate  Jurisdiction  .  .  .  187-194 

CHAPTER  XIV. 
PERIOD  BEFORE  THE  WAR. 
Bench  and  Bar — Distrust  of  the  Colonial  Bar — 
Colden's  Letter — Affiliation  of  Judges — Sub- 
ject UNDER  Consideration 195-202 


15 


PART  II. 

Constitutional  Period-(  1777-1909). 


CHAPTER  XV. 
EFFECT  OF  WAR  ON  THE  COURTS. 

PAGE 

Loyal  Judges — New  York  City  under  Martial 
Law — General  Robertson  in  Command  of  New 
York — Patriotic  Convention — Committees  of 
Safety — District  Committees — Iniquitous  Sys- 
tem— Convention  of  Representatives  of  the 
State  of  New  York — First  Constitution  of 
New  York — Constitutional  Provisions — Com- 
mission for  Southern  District 203-212 

CHAPTER  XVI. 

THE  COURT  OF  COMMON  PLEAS  OF  THE  CITY 
OF  NEW  YORK,  OR  THE  MAYOR'S  COURT. 

During  War  —  David  Mathews  —  First  Mayor 
UNDER  Constitution  —  Rules  of  Practice 
Adopted — Formal  Opening  of  Court — Status 
OF  Court — Popularity  of  Court — Prominent 
Lawyers — Alexander  Hamilton — Rutgers  vs. 
Waddington — State  Sovereignty — History  of 
the  Case — Indemnity  Enactment — Sensational 
Trial — Constitutional  Argument  of  Hamilton 
— The  Court's  Decision — Popular  Indignation 
— ^Able  and  Upright  Judges  —  Recorder  as 
Judge  of  Mayor's  Court — Official  Designation 
of  Court  of  Common  Pleas — Mayor  Deprived  of 

16 


TABLE  OF  CONTENTS. 

■  PAGE 

Judicial  Power — Judge  Irving — Court  of  Ses- 
sions— Appellate  Jurisdiction — Constitutional 
Enactment — Jurisdiction  of  Common  Pleas — 
Court  Abolished 213-238 

CHAPTER  XVII. 
THE  SUPREME  COURT. 
Recognition  of  Court — Regulations  of  Court — 
First  Session  of  Court  —  Salary  —  Terms  of 
Court — Court  Provisions — Venue — Additional 
Judges  —  Court  Rules  —  Chancellor  Kent — 
State  Reporter — Duties  of  Clerk — New  Terms 
OF  Court — Judges'  Salaries  Increased — Consti- 
tutional Enactment — Official  Tenure  of  Of- 
fice— Change  in  Terms  of  Court — Clerks — 
Reporter — Office  of  Judge  made  Elective — 
Popular  Election — Gradual  Evolution  of  Su- 
preme Court — Constitution  of  1846 — Jurisdic- 
tional Changes  —  Constitution  of  1895 — 
Supreme  Court,  How  Constituted  —  Judicial 
Districts — Terms  of  Office — ^^^acancies.  How 
Filled — Judges  to  Hold  no  Other  Office — Re- 
moval OF  Judges — Compensation,  Age  Restric- 
tion, Assignment  by  Governor 239-258 

CHAPTER  XVIII. 
COURT  OF  CHANCERY. 

Existence  Recognized — Re-organization  of  Court 
— Successive  Chancellors — Written  Opinions 
— Chancellor  Walworth — Last  Chancellor — 
Effect  of  Constitution  of  1821 — Vice-Chan- 
cellor FOR  First  Circuit — Court  of  Chancery 
Abolished    259-266 

CHAPTER  XIX. 
CONSTITUTION   OF    1821. 
Aristocracy  —  Circuit     Courts  —  Constitutional 

17 


TABLE  OF  CONTENTS. 

PAGE 

Changes — Revised     Statutes — Superior     Court 
OF  THE  City  of  New  York 267-272 

CHAPTER  XX. 
COURT  OF  APPEALS. 

Relation  to  Supreme  Court — Origin  of  Court — 
As  at  Present  Constituted  —  Amendments  — 
Under  Constitution  of  1895 — Vacancy — How 
F1L1.ED — Jurisdiction  of  Court  of  Appeals — 
Judges  not  to  Hold  any  Other  Office — Re- 
moval OF  Judges — Compensation,  Age  Restric- 
tion, Assignment  by  Governor 273-282 

CHAPTER  XXI. 

APPELLATE   DIVISION  OF  THE  SUPREME 
COURT. 

Nature  of  Court — Judicial  Departments — Ap- 
pellate Division — How  Constituted — Governor 
TO  Designate  Justices — Jurisdiction — Reporter 
— Time  and  Place  of  Holding  Courts — Judge 
OR  Justice  not  to  Sit  in  Review — Testimony  in 
Equity  Cases 283-286 

CHAPTER  XXII. 

COUNTY  COURTS. 

Their  Nature — New  York  County  Court — Pres- 
ent Status — County  Courts  as  now  Constituted 
— Courts  of  Sessions  Abolished 287-290 

CHAPTER  XXIII. 

SURROGATES'  COURTS. 

Surrogates,  When  to  be  Elected  —  Separate 
County  Judge  and  Surrogate  —  When  They 
Enter  upon  Their  Duties — Surrogates'  Court 
under  Present  Constitution 291-294 

18 


TABLE  OF  CONTENTS. 

CHAPTER  XXIV. 

SPECIAL  COURTS  FOR  THE  CITY  OF  NEW 
YORK. 

PAQE 

City  Court  of  the  City  of  New  York — Municipal 
Courts — Inferior  Courts  of  Criminal  Jurisdic- 
tion— Court  of  Magistrates — Organization  and 
Powers  of  the  Court — Establishment  of  Part 
for  Children's  Cases  in  First  Division — Court 
OF  Special  Sessions — Children's  Court — Juris- 
diction— Court  and  Office  of  Justice  of  Peace 
Abolished — The  Superior  Court — Jurisdiction 
— Purely  a  Statutory  Court 295-304 

CHAPTER  XXV. 

JUSTICES  OF  THE  PEACE. 

Popular  Courts — Court  Procedure — Jury  Trials 
— Costs — Amended  Jurisdiction — ^Assistant-Jus- 
tices' Court — Present  Status 305-312 

CHAPTER  XXVI. 

CIRCUIT  COURTS  AND  COURTS  OF  OYER  AND 
TERMINER. 

Supreme  Court  Circuits — Oyer  and  Terminer — 
Division  of  State  into  Circuits — Foreign  Coun- 
ties— Special  Oyer  and  Terminer 313-320 

CHAPTER  XXVII. 

COURT   FOR   THE   TRIAL   OF   IMPEACHMENTS 
AND  THE  CORRECTION  OF  ERRORS. 

Only  New  Court  under  Constitution — Impeach- 
ment Procedure — Correction  of  Errors.  .  .321-324 


19 


PART  III. 

A  General  Review  of  all  the  Courts,  Being 

a  Brief  Sketch  of  each  from  1623 

to  the  Present  Time. 


CHAPTER  XXVIII. 
COURT  OF  GOVERNOR  AND  COUNCIL. 

PAGK 

Early  Dutch — Court  Established  by  Stuyvesant 
—Body  of  Nine  Men 327-328 

CHAPTER  XXIX. 

PATROONS'  COURTS. 

Grant  of  Land  to  Patroons — Jurisdiction  and 
Procedure — Patroon's  Courts  Abolished.  .329-332 

CHAPTER  XXX. 

COURT  OF  SCHOUT,  BURGOMASTER  AND 
SCHEPENS. 

Popular  Court  Established — Change  of  Name — 
— Jurisdiction  of  Court — Procedure  at  Trial — 
Depositions  of  Witnesses — Degrees  of  Evidence 
— Execution  of  eluDGMENT — Additional  Juris- 
diction —  Criminal  Branch  of  Court  —  Addi- 
tional Courts 333-340 

CHAPTER  XXXI. 
MAYORS'  COURT. 

First  English  Court — Functions  of  Court — Divid- 
ed into  Three  Tribunals. 341-344 

20 


TABLE  OF  CONTENTS. 

CHAPTER  XXXII. 
THE  GENERAL  COURT  OF  ASSIZE. 

PAGE 

Composition  of  Court  —  Origin  —  Jurisdiction  — 
Jury  Trials    345-346 

CHAPTER  XXXIII. 
COURTS  OF  SESSIONS. 

Courts  for  the  Three  Ridings — Jurisdiction — 
Procedure — The  Jury  —  Presiding  Justice  — 
Appeals  from  Sessions — ^Under  State  Govern- 
ment     347-352 

CHAPTER  XXXIV. 

COURT  OF  ADMIRALTY. 

Original  Admiralty  Jurisdiction — First  Regular 
Court — Appeals  from  Court — State  Court  of 
Admiralty 353-356 

CHAPTER  XXXV. 

COLONIAL  APPELLATE  COURTS. 

Early  Appellate  Jurisdiction  —  Under  State 
Constitution    357-358 

CHAPTER  XXXVI. 
EXCHEQUER  COURT. 
Colonial   Exchequer   Jurisdiction — State    Court 
359-360 

CHAPTER  XXXVII. 
COURT  OF  PROBATES. 

Probate  Jurisdiction  among  Dutch — Under  State 
Government — Later  Probate  Jurisdiction  .  361 

CHAPTER  XXXVIII. 

COURT  OF  CHANCERY. 

Early  Equity  Practice — Establishment  of  Court 
— Re-organiuation  by  Nanfan — Recognition  by 

21 


TABLE  OF  CONTENTS. 

PAGK 

First  Constitution  of  State — Changes  by  Con- 
stitution OF  1821  —  Successive  Changes  and 
Abolition 365-370 

CHAPTER   XXXIX. 
SUPREME  COURT. 

Colonial  Supreme  Tribunals — Creation  of  Court 
— First  Chief-Justice — Changes  in  Salary 
— Terms  of  Court — Circuits — Legislative 
Changes — Court  under  First  Constitution — 
Sessions  of  Court — First  Rules — Appointment 
OF  Reporter  and  Clerk — Constitutional 
Changes,  1821 — Changes  in  Terms — Changes  in 
in  Clerks'  Offices — Elective  Judges — Number 
OF  Judges — Constitutional   Changes 371-386 

CHAPTER  XL. 
CIRCUIT  COURTS  AND  COURTS  OF  OYER  AND 

TERMINER. 
Supreme  Court  Circuits — Legislative  Enactments 
— Constitution  of  1821 — Jurisdiction  of  Court 
— Equity  Jurisdiction 387-392 

CHAPTER  XLI. 
COURT  FOR  THE  TRIAL  OF  IMPEACHMENTS 

AND  CORRECTION  OF  ERRORS. 
Only  New  State  Court — Impeachments — Correc- 
RECTiON    OF    Errors — Constitutional    Changes, 
1821 393-396 

CHAPTER  XLII. 
COURT    OF    COMMON    PLEAS    FOR    THE    CITY 

AND  COUNTY  OF  NEW  YORK. 
Originally  Mayor's  Court — City  Officials  in 
County  Court  —  Appointment  of  Associate 
Judge — Election  of  eluDGEs — Jurisdiction  of 
Court — Appeals — Appointment  of  Clerk — Abo- 
lition OF  Court 397-404 

22 


TABLE  OF  CONTENTS. 

CHAPTER  XLIII. 
JUSTICES  OF  THE  PEACE— MARINE  COURT. 

PAQK 

Jurisdiction  of  Justices  in  Colony — Powers  of 
Justices  in  State — Procedure — Fees — Justices' 
Court  for  City — Marine  Court — Assistant-Jus- 
tices* Courts — Constitutional  Changes,  1846 — 
Constitution  of  1895 — Justices'  Courts  Abol- 
ished     405-412 

CHAPTER  XLIV. 

CONSTITUTION  OF  1821  AND  REVISED 
STATUTES. 

Early  Conditions — Court  of  Probates  Abolished 
— Revised  Statutes 413-416 

CHAPTER  XLV. 

COUNTY  COURTS. 

Foundation — New  York  County  Court — Consti- 
tution OF  1846 — As  Constituted  at  Present — 
Courts  of  Sessions  Abolished 417-420 

CHAPTER  XLVI. 
SUPERIOR  COURT  OF  THE  CITY  OF  NEW  YORK. 
Reasons  for  Establishment — First  Judges  .  .  .  421-422 

CHAPTER  XLVII. 

COURT  OF  APPEALS. 

Origin  of  Court — Creation  of  Court — Amend- 
ment OF  1869 — Constitution  of  1895 — Vacancy 
in  Court  of  Appeals,  How  Filled — Jurisdiction 
— ^Judges  not  to  Hold  any  Other  Office — Re- 
moval OF  Judges — Compensation,  Age  Restric- 
tion, Assignment  by  Governor 423-432 

23 


TABLE  OF  CONTENTS. 

CHAPTER  XL VIII. 
SURROGATES'  COURTS. 

PAGE 

As  Constituted  in  1846 — Separation  of  County 
Officers  —  Constitution  of  1895  —  Vacancies, 
How  Filled    : 433-436 

CHAPTER  XLIX. 
CORONERS'  COURTS. 
Functions  of  Coroner — County  Law,  1892 — Cor- 
oner IN  Erie  County 437-444 

CHAPTER  L. 

APPELLATE  DIVISION  OF  THE  SUPREME 

COURT. 

Successor  to  General  Term — Judicial  Depart- 
ments— Appellate  Division,  How  Constituted — 
Governor  to  Designate  tlusTiCES — Jurisdiction 
— Reporter — Terms — Judges  not  to  Sit  in  Re- 
view— Testimony  in  Equity  Cases 445-448 

CHAPTER  LI. 

COURT  OF  MAGISTRATES  OF  THE  CITY  OF 

NEV^  YORK. 

Created  by  New  York  Charter — Organization  and 
Powers  of  the  Courts — Children's  Part  in 
First  Division — Inferior  Courts  of  Criminal 
Jurisdiction 449-452 

CHAPTER  LII. 

Court  of  Special  Sessions 453-454 

CHAPTER  LIIL 

COURTS  CODIFIED. 

Courts  of  Record — Courts  not  of  Record  ....  455-458 

CHAPTER  LIV. 
City  Court  of  Yonkers 459-460 

24 


TABLE  OF  CONTENTS. 
CHAPTER  LV. 

PAGE 

Mayor's  Court  of  the  City  of  Hudson 461-462 

CHAPTER  LVI. 

The  Recorder's  Court  of  the  City  of  Utica  .  .  463-466 

CHAPTER  LVII. 

Recorder's  Court  of  the  City  of  Oswego  .....  467-468 

CHAPTER  LVIII. 
Justices'  Court  in  the  City  of  Albany 469-470 

CHAPTER  LIX. 
Court  of  Claims 471-472 

CHAPTER  LX. 
Municipal  Court  of  the  City  of  Rochester  . . .  473-474 

CHAPTER  LXI. 

Municipal  Court  of  the  City  of  Syracuse  ....  475-476 

CHAPTER  LXII. 
Municipal  Court  of  the  City  of  Buffalo  ....  477-478 

CHAPTER  LXIII. 
Investigation  of  Criminal  Courts 479-481 


25 


PART  1 


COLONIAL  PERIOD— 1623-1777. 


CHAPTER  I. 


STATUS  OF  LAW  IN  THE  PROVINCE 

OF  NEW  NETHERLANDS  UNDER 

THE  DUTCH. 


Aborigines  —  Advent  of  the  Dutch  —  Pur- 
chase OF  Manhattan  Island — The  States 
General — Colony  of  New  Netherlands — 
Governor  and  Council — Patroons — Admin- 
istration OF  KiEFT — Charter  of  Privileges 
— Popular  Discontent — Recall  of  Kieft — 
New  Court  under  Stuyvesant — The  Body 
OF  Nine  Men — Unpopularity  of  Stuyvesant 
— Burgher  and  Schepens  Court — Politi- 
cal Conditions — Court  of  Schout^  Burgo- 
masters AND  Schepens — Procedure  of  the 
Court — Alternati\t:  Procedure — Rules  of 
Evidence — Proceedings  after  Judgment — 
Jurisdiction  —  Additional  Powers  —  Stat- 
utory Fees — Criminal  Jurisdiction — Addi- 
tional Courts — Final  Occupation  and  Abdi- 
cation OF  THE  Dutch. 

ABORIGINES. 

At  the  time  of  the  first  settlement  of  Manhattan 
Island  by  the  Dutch,  in  the  year  1623,  theaborig- 

29 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

ines  were  the  American  Indians.  History  does  not 
shed  much  hght  on  what  branch  of  the  five  great 
nations,  as  they  are  known,  frequented  the  present 
site  of  New  York  City. 

The  Indians  hved  under  their  tribal  form  of  gov- 
ernment, and  were  ruled  by  a  chief  or  grand 
sachem,  whose  functions  were  rather  those  of  a 
military  leader  than  civic  administrator.  A  regular 
and  orderly  system  of  law  and  order  they  had  not. 
These  uncivilized  children  of  nature  relied  on  their 
personal  prowess  for  the  redress  of  their  griev- 
ances, and  blood  was  the  wages  of  wrong.  They 
were  superior  to  the  native  beasts  of  these  haunts 
only  in  their  ability  to  hunt  and  subdue  them  to 
their  needs.  Their  manner  of  life  was  nomadic, 
and  when  not  on  the  warpath  their  chief  occupation 
was  hunting  and  fishing. 

ADVENT  OF  THE  DUTCH PURCHASE  OF  MxVNHATTAN 

ISLAND. 

It  was  on  this  primitive  soil  that  a  civilized  form 
of  government  was  first  installed  by  the  Dutch  in 
1623.  The  territory  now  embraced  by  Manhattan 
Island  was  acquired  by  barter  from  the  Indians  for 
gewgaws  and  trinkets,  worth,  in  all,  about  twenty- 
five  dollars.  The  first  appearance  of  the  Dutch 
settlers  and  their  heretofore  unseen  ships  was  re- 
garded by  the  Indians  Avith  superstitious  awe. 
This  state  of  easy  credulity  may  account  for  their 
ready  acquiescence  in  what  the  courts  of  to-day 

30 


THE  STATES  GENERAL. 

might  regard  as  over-reaching  and  taking  undue 
advantage  of  the  unsophisticated. 

Upon  their  formal  occupancy  of  the  soil  the  new 
landlords  instituted  a  form  of  government  similar 
to  their  home  government  in  Holland.  A  charter 
to  found  and  govern  colonies  in  America  and  other 
parts  of  the  world  had. been  granted  by  the  States 
General  of  Holland  to  the  West  India  Company, 
a  commercial  corporation  of  Holland.  Under  this 
charter,  the  agents  and  directors  of  the  West  India 
Company  were  empowered  to  appoint  governors 
and  other  officers  to  maintain  order  and  perform 
the  functions  of  government  in  the  newly  settled 

colonies. 

t 

THE  STATES  GENERxVI.. 

This  gigantic^  corporation  was  under  the  immedi- 
ate supervision  of  the  home  government.  The 
College  of  Nineteen  was  a  board  of  nineteen  dele- 
gates in  whom  wei-fe  vested  the  general  executive 
powers  over  the  States  General,  and  five  separate 
chambers  charged  with  the  government  of  the 
West  India  Company's  affairs.  To  the  Chamber 
of  Amsterdam,  one  of  the  five,  was  committed  the 
sovereignty  of  the  colony  of  New^  Netherlands. 

COLONY  OF  NEW  NETHERI^NDS. 

In  1623,  under  the  administration  of  May,  the 
first  governor  appointed  by  the  Amsterdam  Cham- 

31 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

ber,  was  organized  the  colony  of  New  Netherlands, 
the  first  settlement  of  which  was  established  on 
Manhattan  Island  on  what  is  now  the  present  site 
of  New  York  city.  The  name  of  New  Amsterdam 
was  given  to  the  first  settlement,  and  it  was  in- 
tended as  the  seat  of  government  of  the  Dutch 
possessions  in  the  New  World.  May  was  succeeded 
as  governor,  at  the  end  of  the  first  year,  by  Ver- 
hulst,  whose  rule  was  of  no  longer  duration. 

During  the  administration  of  the  first  two  gov- 
ernors, the,  unsettled  condition  of  the  colony's  af- 
fairs, the  unremitting  struggle  with  the  barriers  of 
nature,  and  the  paucity  of  numbers,  precluded  the 
formation  of  any  permanent  or  regular  system  of 
jurisprudence. 

GOVERNOR  AND  COUNCIL. 

Verhulst  was  superseded  as  governor  in  1626  by 
Peter  Minuit,  who,  owing  to  the  rapid  settlement 
and  increased  importance  of  the  new  colony,  was 
assisted  in  the  duties  of  his  office  by  a  council  of  five, 
vested,  like  himself,  with  full  legislative,  execu- 
tive, and  judicial  powers,  subject  to  review  by  the 
Amsterdam  Chamber. 

•  Attached  to  the  governor  and  his  council  was  the 
schout  fiscal,  a  semi-legal  and  military  officer  com- 
bining the  duties  of  attorney-general  and  prosecut- 
ing officer  for  the  province  with  those  of  sheriff,  it 
being  one  of  his  functions  to  execute  the  decrees  of 
justice. 

32 


PATROONS    COURTS. 

During  the  rule  of  Minuit,  which  covered  a  pe- 
riod of  six  years,  and  his  successor  Van  Twiller,  up 
to  the  year  1637,  the  governor,  council  and  schout 
took  charge  of  all  judicial  proceedings.  Unfortu- 
nately all  records  of  that  period  are  lost,  so  we  do 
not  know  the  character  of  the  justice  administered 
during  their  terms  of  office. 

PATROONS. 

In  the  year  1630,  in  order  to  encourage  emigra- 
tion to  New  Netherlands,  the  West  India  Company 
made  extensive  grants  of  land  to  certain  wealthy 
men  of  Holland,  known  as  patroons,  on  the  condi- 
tion that  they  bring  a  certain  number  of  men  to  the 
province.  These  patroons  were  a  landed  aristoc- 
racy vested  with  feudal  powers,  as  lords  of  the  soil. 

In  addition  to  the  ownership  of  the  land,  there 
was  conferred  upon  them  authority  to  establish 
courts  of  justice.  The  courts  thus  created  were 
known  as  Patroons'  Courts,  and  exercised  within 
the  patroons'  territory  an  almost  despotic  jurisdic- 
tion, civilly  and  criminally. 

The  patroon  or  his  deputy  sat  in  arbitrary  judg- 
ment and  was  vested  with  power  of  life  and  death. 
His  decision  was  final  in  all  civil  cases,  subject  only 
to  an  appeal  to  the  director-general  and  council  of 
the  province,  where  the  amount  involved  exceeded 
fifty  guilders;  this  right  of  appeal,  however,  was 
abrogated  by  the  patroon  first  enforcing  from  the 
tenant,  as  a  condition  precedent  to  entry  upon  the 

33 


THE  COURTS  OF  THP:  STATE  OF  NEAV  YORK. 

land,  that  he  would  in  no  case  invoke  this  right. 
It  is  easy  to  imagine  the  high-handed  and  corrupt 
justice  thus  meted  out  to  the  suitors  in  these 
Patroons'  Courts. 

ADMINISTRATION  OF  KIEFT. 

In  1638,  William  Kieft,  a  harsh  and  unscrupu- 
lous man,  was  appointed  to  the  office  of  governor. 
He  has  been  characterized  as  unjust,  arbitrary,  nar- 
row-minded, tyrannical,  grasping,  and  pompous, 
\vith  a  restlessness  that  was  ever  perverted  to  futile 
purposes,  inconsistent  with  the  public  good. 

During  the  nine  years  of  his  administration  he  as- 
sumed entire  charge  of  the  conduct  of  public  affairs, 
legislative,  executive,  and  judicial.  By  his  commis- 
sion he  was  to  be  assisted  in  the  duties  of  his  office, 
as  were  his  predecessors,  by  an  executive  council; 
such  a  limitation  to  his  powers  would  have  deprived 
him  of  the  controlling  voice  in  affairs  of  state.  To 
overcome  this  difficulty,  he  reduced  the  council  to 
one  member,  a  literal,  though  not  substantial,  com- 
pliance with  the  wording  of  the  act  of  investiture ; 
this  act  of  statecraft,  in  view  of  his  two  votes  as  gov- 
ernor, gave  him  exclusive  control  and  domination. 

CHARTER  or  PRIVILEGES. 

In  1640,  the  College  of  Nineteen  adopted  a  char- 
ter of  exemptions  and  privileges  which  had  for  its 

34 


CHARTER  OF   PRIVILEGES. 

object  the  encouragement  of  emigration  to  New 
Netherlands.  In  this  charter  it  was  declared  that 
the  governor  and  council  should  act  jointly  as  a 
couj-t  for  the  hearing  of  all  claims  and  disputes;  act 
as  an  Orphans'  and  Surrogates'  Court,  and  pass 
judgment  on  all  religious  and  criminal  offences, 
and  administer  justice  in  general.  In  conformity 
with  the  po^vers  and  privileges  of  the  charter,  Kieft 
ordered  the  council  to  convene  each  Thursday  for 
the  purpose  of  hearing  and  adjudicating  all  civil 
and  criminal  processes,  and  the  redress  of  all  griev- 
ances brought  into  court ;  he  also  established  certain 
rules  of  court  procedure.  Under  a  court  of  such 
doubtful  complexion,  let  the  reader  picture  how  jus- 
tice was  travestied  and  debauched  at  the  will  and 
caprice  of  this  headstrong  and  frowning  "JefFrys." 
Consistent  with  his  other  oppressive  tactics,  was  his 
rude  treatment  of  the  schout  fiscals,  or  schouts  as 
heretofore  designated.  If  they  were  occasionally 
invited  to  participate  at  the  sessions  of  court,  it  was 
only  to  be  humiliated  and  ignored,  the  effect  of 
which  injudicious  policy  was  to  render  the  court 
conspicuous  by  their  absence. 

The  ruthless  and  unconciliatory  methods  of  Kieft 
involved  him  in  continuous  trouble  with  the  Indians, 
as  well  as  his  constituents.  Fines,  confiscations,  and 
banishments  became  the  order  of  the  day,  and  the 
right  of  appeal  to  Amsterdam  was  rendered  inoper- 
ative by  unconscionably  fining  and  imprisoning  all 
who  resorted  to  this  privilege. 

35 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 


POPULAR  DISCONTENT. 

The  inevitable  result  of  such  harsh  measures  was 
an  expression  of  popular  indignation  which  took  the 
form  of  a  petition  for  remedial  legislation,  and  the 
adoption  of  a  system  of  judicature  modelled  on  that 
to  which  the  people  were  accustomed  in  Holland. 

Kieft  had  persistently  opposed  the  grant  of  any 
such  right  to  the  inhabitants  of  New  Amsterdam, 
but  at  this  juncture  he  needed  their  help  in  a  war 
he  contemplated  against  the  Indians.  The  people 
consented  to  co-operate  with  him  in  waging  this 
war,  in  return  for  concessions  of  reform  in  the 
colonial  judicature.  Quick,  in  his  predicament,  to 
avail  himself  of  this  promise  of  assistance,  he  thus 
rallied  to  his  support  the  colonists.  The  advisability 
of  going  to  war  was  to  be  submitted  to  a  consensus 
of  the  community;  therefore  twelve  men  were  se- 
lected by  the  heads  of  families  to  represent  and  act 
for  them.  The  war  was  approved,  and  a  petition 
presented  to  the  governor  for  the  establishment  of 
courts  of  justice,  similar  to  those  of  Holland.  The 
request  was  at  first  evaded,  and  finally  disposed  of 
by  summarily  dissolving  the  peoples'  chosen  repre- 
sentatives. 

RECALL  OF  KIEFT. 

Two  years  later  Kieft  again  found  it  necessary 
to  seek  the  aid  of  the  inhabitants  in  adjusting  the 
mismanaged  affairs  of  the  colony.    Representatives 


NEW   COURT  UNDER  STUYVESANT. 

were  again  chosen,  to  the  number  of  eight,  to  confer 
with  the  governor  as  to  means  of  relieving  the  situa- 
tion. Efforts  were  not  now  wasted  in  futile  requests 
to  Kieft  for  a  redi^ess  of  the  popular  grievances  but 
an  earnest  appeal  was  forwarded  to  the  College  of 
Nineteen  and  the  States  General  of  Holland.  The 
upshot  of  the  whole  matter  was  the  recall  of  Kieft 
to  Holland,  and  the  appointment  of  Peter  Stuy- 
vesant  as  governor  in  his  stead. 

Peter  Stuyvesant  came  over  to  New  Amsterdam 
in  1647,  accompanied  by  a  schout  and  an  officer 
known  as  a  vice-director.  Upon  his  arrival  Stuy- 
vesant established  a  court  whereof,  in  his  absence, 
the  vice  director  was  to  be  presiding  justice,  and 
with  other  officers  of  the  company,  assist  him  in 
the  administration  of  justice. 

NEW  COURT  UNDER  STUYVESANT. 

The  jurisdiction  of  the  newly  established  tribunal 
was  most  comprehensive,  and  included  cognizance 
of  all  cases  whatsoever,  subject,  however,  to  the 
governor's  opinion  on  weighty  questions.  The  gov- 
ernor was,  by  virtue  of  his  office,  presiding  justice, 
and  occasionally  exercised  this  prerogative  by  being 
present  at  important  trials. 

In  criminal  cases,  besides  the  judges  mentioned 
above,  two  capable  citizens  from  the  locality  where 
the  offence  was  committed  were  to  be  chosen  by  the 
governor  to  sit  with  him  or  his  deputy  as  judges. 

All  this  was  but  an  inadequate  measure  of  re- 

37 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

form,  and  did  not  satisfy  the  demand  for  a  more 
popular  form  of  government.  That  some  conces- 
sion must  be  made  to  this  insistent  clamor  was  now 
evident  to  Stuyvesant. 

THE  BODY  or  NINE  MEN. 

Accordingly  he  allowed  the  people  to  elect  eigh- 
teen representatives,  nine  of  whom,  selected  by 
the  governor,  were  to  constitute  a  permanent  body 
to  advise  him  on  all  public  matters.  This  num- 
ber became  known  as  the  "  Body  of  Nine  Men," 
and  was  vested  with  certain  judicial  powers.  They 
discharged  their  duties  by  rotation,  three  of  them 
attending  successively  at  each  session  of  court,  and 
acting  as  arbitrators  in  all  cases.  Their  decision  was 
binding  upon  the  parties,  subject  only  to  an  appeal 
to  the  governor  and  council,  upon  payment  of  costs 
amounting  to  one  pound  Flemish.  These  and  the 
Patroons'  Courts  remained  the  established  judicial 
system  in  the  colony  for  seven  years. 

UNPOPULARITY  OF  STUYVESANT. 

In  spite  of  Stuyvesant's  conciliatory  action  in 
thus  yielding  to  the  popular  demand  for  judicial 
reform,  his  government  grew  more  and  more  in  dis- 
favor. Though  himself  a  man  of  tact  and  enter- 
prise, he  was  unable  to  adopt  his  policies  to  the  exi- 
gencies of  a  people  in  a  new  and  remote  country. 
The  great  commercial  interests  entrusted  to  his  care 

38 


BURGHER  AND  SCHEPENS  COURT. 

were  incompatible  with  the  executive  functions  of 
his  administration  as  a  colonial  governor. 

Despite  the  violent  opposition  of  Stuyvesant, 
who  imprisoned  and  removed  from  office  its  pro- 
jector, the  Body  of  Nine  met,  prepared  a  petition 
for  redress  to  the  States  General,  and  deputed  three 
of  their  number  to  present  it  in  person.  This  peti- 
tion embodied  their  grievances  and  demands,  and 
resulted  in  some  amendments  to  the  existing  order 
of  things. 

BURGHER  AND   SCHEPENS   COURT. 

In  1650  the  States  General  ordered  among  other 
things  that  a  court  of  Justice  similar  to  that  in  exist- 
ence in  Amsterdam  be  erected  in  New  Netherlands, 
and  a  burgher  government  be  established  at  New 
Amsterdam,  to  consist  of  two  burgomasters,  five 
schepens  and  a  schout,  and  that  in  the  meantime  the 
Board  of  Nine  should  continue  to  administer  justice 
in  the  colony. 

This  order  of  the  States  General  was  for  some 
time  resisted  by  the  Chamber  of  Amsterdam,  as  be- 
ing in  contravention  of  their  charter  rights,  and  on 
these  groimds  Stuyvesant  refused  to  obey  it.  A 
struggle  Avhich  lasted  for  two  years  ensued  between 
the  States  General  and  the  Chamber  of  Amster- 
dam. The  Chamber  finally  surrendered  and  ac- 
quiesced in  the  wishes  of  the  colonists.  Stuyvesant 
was  directed  to  establish  a  Court  of  Justice  formed 
as  much  as  possible  after  that  of  the  city  of  Amster- 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

dam  in  Holland.  Owing  to  a  technical  ambiguity 
in  the  order  of  appointment,  Stuyvesant,  who  knew 
well  the  minds  of  his  employers  in  Holland,  de- 
cided fhat  power  was  invested  in  him  to  appoint  the 
magistrates.  Although  this  was  entirely  contrary 
to  the  customs  of  Holland,  Stuyvesant  accordingly 
appointed  magistrates,  schepens  and  schouts  who 
were  but  his  minions,  and  did  as  he  dictated. 

On  February  7th,  1653,  the  first  board  of  magis- 
trates met  and  gave  notice  that  sessions  of  court 
would  be  held  for  "the  hearing  and  determining  of 
all  disputes  between  parties,  as  far  as  practicable,  in 
the  building  heretofore  called  the  City  Tavern  and 
now  the  Stadt  House  (City  Hall)  on  every  Mon- 
day morning,  at  nine  o'clock."  The  City  Hall  not 
being  ready  for  the  day  appointed,  the  first  meet- 
ing was  held  the  following  Friday  at  the  Fort ;  pro- 
ceedings were  solemnly  opened  with  prayer,  and 
the  organization  of  the  court  for  the  transaction  of 
business  effected. 

POLITICAL  CONDITIONS. 

Contrary  to  the  intention  of  the  States  General 
to  establish  the  municipal  government  on  lines  iden- 
tical with  that  of  the  city  of  Amsterdam,  Stuy- 
vesant would  suffer  no  curtailment  of  his  power  or 
that  of  his  council.  This  inconsistent  and  selfish 
conduct  of  Stuyvesant  in  thus  setting  at  defiance 
the  order  of  the  States  General  and  the  legal  rights 

40 


COURT   OF   SCHOUT^    BURGOMASTERS   AND    SCHEPENS. 

and  demands  of  the  people,  entailed  a  series  of  dis- 
orders, unrest  and  continual  remonstrances. 

At  this  period  of  the  history  of  New  Amsterdam 
the  entire  population  was  not  far  in  excess  of  seven 
hundred  inhabitants.  This  wide  difference  be- 
tween the  population  of  the  cities  of  Amsterdam 
and  Xew  Amsterdam  allowed  for  some  relaxation 
in  the  government  of  the  latter.  Adapting  them- 
selves to  local  conditions,  the  newly  appointed  offi- 
cers formed  one  body  for  the  discharge  of  legisla- 
tive, judicial,  and  executive  functions.  Until  1656 
the  eldest  burgomaster  continued  to  act  as  president 
of  the  court,  ^\'hen,  by  Stuyvesant's  order,  the  presi- 
dency was  to  be  changed  every  three  months.  In 
the  year  1660,  the  offices  of  city  schout  and  schout 
fiscal,  which  had  been  merged,  were,  much  to  the 
satisfaction  of  the  colonists,  made  separate  offices. 

COURT    OF    SCHOUT,    BURGOMASTERS    AND    SCHEPENS. 

As  the  final  step  in  this  judicial  evolution,  a  per- 
manent tribunal,  known  as  the  Court  of  the  Schout, 
Burgomasters  and  Schepens,  was  established,  the 
records  of  which  were  kept  by  their  clerk  or  secre- 
tary'. This  was  a  court  of  record,  and  complete 
minutes  of  the  proceedings  have  been  transmitted 
to  us,  which  afford  an  interesting  insight  into  the 
habits  and  manners  of  the  people  of  that  period. 
We  cannot  fall  to  be  impressed  with  the  depth  of 
knowledge  and  display  of  the  principles  of  juris- 
prudence, with  which  their  legal  investigations  were 

41 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

conducted.  Originality  marked  their  methods  of 
ascertaining  the  truth,  exceUing  by  far  the  vicari- 
ous expedients  to  which  the  Enghsh  settlers  of  the 
colony  resorted  when  on  a  like  quest. 

The  burgomasters  claimed  the  right  to  adminis- 
ter unhmited  justice,  as  the  magistrates  in  the  towns 
of  Holland  were  accustomed  to  do.  After  some 
hesitation,  Stuyvesant  reluctantly  allowed  the  mag- 
istrates, who  were  often  laymen,  unlimited  civil 
and  criminal  jurisdiction  in  all  but  capital  cases.  A 
term  of  court  was  appointed  for  every  fortnight. 
Frequently,  if  occasion  required,  a  weekty  or  special 
term  was  held  upon  a  day  designated. 

PROCEDURE  OF  THE  COURT. 

The  procedure  followed  in  these  courts  was  sim- 
ple and  severe,  and  somewhat  similar  to  that  of  a 
modern  police  court.  Upon  complaint  of  the  party 
plaintiff,  an  officer  of  court,  known  as  the  court 
messenger,  summoned  the  party  defendant  to  at- 
tend court  on  the  next  coiu-t  day.  In  case  of  the 
defendant's  failure  to  appear,  he  incurred  the  cost 
of  the  summons,  waived  the  right  to  interpose  any 
demurrer  to  the  court's  jurisdiction,  and  a  new  man- 
date was  issued.  A  second  default  resvdted  in  addi- 
tional costs,  precluded  all  "dilatory  exceptions," 
and  operated  as  a  forfeiture  of  the  other  usual  privi- 
leges of  a  litigant.  A  third  citation  was  now  issued, 
and  upon  the  defendant's  default,  after  inquest 
taken,  final  and  absolute  judgment  was  rendered. 

42 


PROCEDURE  OF  THE  COURT. 

If  it  appeared  from  the  evidence  adduced  that  the 
defendant's  presence  was  essential,  a  fourth  process 
of  court  in  the  nature  of  a  warrant  of  arrest,  was 
issued  and  his  appearance  compelled. 

These  extreme  measures  were  rarely  required,  as 
the  original  summons  was  generally  obeyed.  Upon 
appearance  of  the  parties  in  court,  the  plaintiff 
stated  his  case,  and  the  defendant  answered.  If  an 
issue  of  fact  material  to  the  merits  of  the  contro- 
versy arose,  either  party  might  be  sworn  as  a  wit- 
ness. Should  the  court  be  not  then  sufficiently 
enlightened,  other  witnesses  might  be  examined, 
and  an  adjournment  was  taken  until  the  following- 
court  day.  In  the  meantime  the  witnesses  made 
written  depositions  before  a  notary,  or  were  re- 
quired to  attend  personally  at  court  on  the  ad- 
journed day,  to  be  orally  examined  under  oath. 

Cases  brought  to  court  seldom  went  beyond  the 
initial  stage  of  joinder  of  issue  by  complaint  and 
answer,  and  were  decided  by  the  court  without  a 
jury.  This  reliance  on  the  efficiency  of  such  a  sys- 
tem for  the  redress  of  their  wrongs  manifests 
clearly  how  thoroughly  the  colonial  litigants  were 
imbued  with  the  spirit  of  law  and  the  respect  due  it. 

If  the  issues  raised  for  adjudication  were  of  an 
intricate  and  perplex  nature,  they  were  often  re- 
ferred to  arbitrators  selected  by  the  parties  or  ap- 
pointed by  the  court.  It  was  the  arbitrators'  duty 
to  effect,  if  possible,  a  settlement  of  the  controversy 
out  of  court,  and  in  default  of  such  settlement,  the 

43 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

matter  was  regularly  tried  and  disposed  of  by  the 
magistrates  on  the  bench. 

AETERNATIVE  PROCEDURE. 

A  more  formal  procedure  was  open  to  parties 
who  preferred  it.  After  plaintiff  had  submitted  his 
case,  he  might,  upon  motion  of  defendant,  be  re- 
quired to  reduce  it  to  writing,  for  which  purpose  he 
was  accorded  one  day's  time.  If  this  procedure 
were  invoked,  the  subsequent  pleadings  of  both 
parties  were  required  to  be  in  writing.  These  con- 
sisted of  defendant's  answer,  plaintiff's  reply,  and 
defendant's  rejoinder.  The  depositions  of  each 
party's  witnesses  were  likewise  taken  before  a  no- 
tary of  his  choice,  whose  duty  it  was  to  keep  a 
record  thereof.  In  case  a  witness  resided  without 
the  court's  jurisdiction,  his  depositions  might  be 
taken  ex  parte,  upon  written  interrogatories,  be- 
fore a  local  magistrate,  under  what  was  termed  a 
requisitory  letter.  This  testimony  was  added  to 
the  other  pleadings,  and  together  they  formed  the 
memorial.  This  memorial  was  filed  with  the  court, 
and  open  to  the  inspection  of  either  party,  to  whom 
was  reserved  the  right,  within  a  limited  time,  to 
examine  the  adverse  witnesses  upon  cross-interrog- 
atories, on  any  matter  material  to  the  issues,  con- 
tained in  their  depositions. 

In  rebuttal  or  reply,  either  party  was  at  liberty 
to  introduce  the  testimony  of  witnesses,  examined 
for  that  purpose,  in  accordance  with  the  directions. 

44 


ALTERNATIVE   PROCEDURE. 

A  practice  so  cumbersome  and  expensive  was  sel- 
dom followed.  The  more  common  procedure  was 
a  reference  to  arbitrators,  or  a  hearing  in  court, 
which  was  less  expensive  and  more  expeditious. 

RULES  OF  EVIDENCE. 

We  deem  it  not  amiss,  in  this  connection,  to  con- 
sider briefly  the  rules  which  governed  documentary 
evidence.  Papers  and  documents  purporting  to  be 
in  a  party's  handwriting  were  presumed  by  law  so 
to  be,  unless  denied  by  the  adverse  party  under 
oath.  Account  books,  when  properly  itemized  and 
kept,  were  admissible  in  evidence  in  behalf  of  the 
party  who  offered  them. 

The  credibility  of  witnesses  and  weight  of  evi- 
dence were  entirely  left  to  the  discretion  of  the 
judges,  as  no  jury  was  empanelled.  As  a  result 
of  this,  we  are  confronted  with  an  extremely 
subtle  judicial  balancing,  which  led  to  a  singular 
classification  of  the  degrees  and  kinds  of  evidence, 
A  fundamental  distinction  was  drawn  between  full 
proof  and  half  proof.  The  former  was  primary  or 
original  evidence,  supported  by  at  least  two  cred- 
ible witnesses,  or  that  species  of  evidence  resting 
upon  a  document  or  written  paper.  The  latter, 
above  distinguished  as  half  proof,  was  the  testi- 
mony of  a  single  witness,  which  would  be  admitted 
in  our  courts  as  direct  evidence.  Hearsay  was 
classified  as  half  proof,  and  admitted  as  corrobor- 

45 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

ative  evidence,  and  if  a  dying  declaration,  admitted 
as  full  proof. 

PROCEEDINGS    AFTER    JUDGMENT. 

When  judgment  for  a  sum  of  money  was  ren- 
dered against  a  defendant,  he  was  usually  allowed 
fourteen  days  within  which  to  pay  one-half  the 
sum  and  one  month  for  the  payment  of  the  re- 
mainder. Non-compliance  with  these  terms  result- 
ed in  summary  action  by  the  court  to  enforce 
collection.  Upon  application,  a  schout,  or  more 
usually  the  court  messenger,  armed  with  his  in- 
signia of  office,  a  bunch  of  thorns,  was  sent  to  the 
judgment  debtor,  and  upon  exhibiting  a  copy  of 
the  sentence,  demanded  that  satisfaction  be  made 
in  twenty-four  hours.  Should  the  debtor  further 
default,  this  demand  was  repeated  with  increased 
expense,  and  at  the  end  of  the  twenty-four  hours 
the  debtor's  movable  property  was  attached  by  the 
messenger  in  the  presence  of  a  schepen,  and  de- 
tained for  six  days,  subject  to  redemption  on  pay- 
ment of  judgment  and  costs.  If  the  goods  still 
remained  unredeemed,  public  notice  was  given  on 
Sunday,  and  upon  a  law-day,  that  they  would  be 
sold  at  public  auction  on  the  next  market  day. 

If  it  should  be  found  necessary  to  levy  on  real 
estate,  or  immovable  property,  greater  formality 
was  observed  in  the  method  of  conducting  the  sale 
and  an  extension  of  time,  within  which  to  redeem, 
was  granted.     By  a  general  and  unique  custom, 

46 


PROCEEDINGS   AFTER   JUDGMENT. 

which  at  this  time  prevailed  in  the  colony,  the  sale 
was  continued  at  public  auction,  during  the  burn- 
ing of  a  lighted  candle;  at  the  extinction  of  the 
candle  the  property  w^as  struck  off  to  him  who 
had  made  the  highest  bid. 

JURISDICTION. 

All  manner  of  actions  were  brought  before  this 
court,  but  the  justice  administered  was  by  the  con- 
scientious and  best  efforts  of  the  magistrates,  who 
sought  by  a  diligent  ascertainment  of  the  facts  and 
law^  of  the  case  to  administer  justice  as  they  saw 
the  light. 

The  civil  business  of  the  court  consisted  mainly 
of  actions  for  money  due  and  owing ;  attachment  of 
absconding  debtors'  property;  actions  relating  to 
real  estate;  actions  to  recover  damages  for  injuries 
to  land  or  personal  property,  and  actions  in  re- 
plevin. 

A  penalty  of  imprisonment  was  imposed  on  the 
defaulting  party  in  actions  for  seamen's  wages, 
and  for  breach  of  promise  of  marriage.  In  cases 
of  separation  between  man  and  wife,  the  children 
w  ere  equally  allotted,  and  after  payment  of  debts, 
the  property  equally  divided.  In  bastardy  pro- 
ceedings, security  for  the  child's  support  was  re- 
quired from  the  male,  and  both  parties  liable  to  fine 
or  imprisonment.  Assault  and  battery,  and  defa- 
mation, were  quasi-criminal  in  their  nature,  and 
subjected  the  offender  to  fine  and  imprisonment, 

47 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

though  public  recantation  of  slander  before  the 
court  generally  procured  a  discharge.  Pecuniary 
damages  were. not  allowed  for  injuries  to  person  or 
property.  The  somewhat  narrow  and  provincial 
character  of  the  early  inhabitants  of  Manhattan  is 
evidenced  by  the  unusual  prevalence  of  actions  for 
defamation  of  character. 

ADDITIONAL  POWERS. 

Among  the  other  functions  of  this  court  were 
that  of  a  Court  of  Admiralty,  and  of  a  Court  of 
Probate.  This  latter  branch  of  its  jurisdiction  in- 
cluded general  powers  over  decedents'  estates,  such 
as  proving  last  wills  and  testaments,  and  guardi- 
anship and  management  of  the  affairs  of  widows 
and  orphans,  through  curators  appointed  for  that 
purpose  by  the  court. 

The  court  had  acted  as  an  Orphans'  Court,  but 
an  Indian  massacre  of  the  white  settlers  of  JNIan- 
hattan  about  the  year  1655,  left  so  many  widows 
and  orphans,  that  the  burgomasters,  who  acted  in 
the  dual  capacity  of  a  municipal  and  judicial  body, 
begged  Stuyvesant  to  relieve  them  of  some  of  their 
duties.  In  compliance  with  this  request,  Stuyve- 
sant created  a  separate  court  to  be  known  as  the 
Court  of  Orphan  Masters,  which  exercised  many  of 
the  duties  of  the  Surrogates'  Court  of  today.  It 
was  at  first  composed  of  three  masters,  but  this 
number  was  later  reduced  to  two.    The  existence  of 

48 


CRIMINAL  JURISDICTION. 

this  court  terminated  with  the  transfer  of  the  colony 
into  the  hands  of  the  Enghsh. 

STATUTORY   FEES. 

About  this  time,  to-wit,  on  the  25th  of  January, 
1658,  Stuyvesant  inaugurated  a  fee  bill  regulating 
the  legal  compensation  of  attorneys  and  public 
officers.  The  taint  of  avarice  in  the  public  service 
seems  to  have  necessitated  this  legislation.  The  ex- 
tortionate remuneration  for  their  services  which 
scriveners,  notaries,  clerks  and  other  licensed  per- 
sons had  demanded,  required  public  adjustment. 
The  effect  of  this  enactment  was  to  provide  for  the 
better  and  easier  administration  of  justice  and  to 
abolish  the  prohibitive  costs  of  litigation. 

CRIMINAL  JURISDICTI()N. 

The  enforcement  of  the  law,  in  criminal  cases, 
was  vested  in  the  schout.  At  his  requisition,  and 
upon  sufficient  evidence  adduced  to  warrant  it,  the 
defendant  might  be  summoned  or  arrested  at  the 
discretion  of  the  court.  Bail  was  accepted  in  all 
cases  except  those  of  murder,  treason,  arson  or  rape 
in  the  first  degree.  Two  methods  of  trial  prevailed : 
A  public  trial,  conducted  according  to  the  general 
rules  of  evidence,  which  was  the  ordinary  pro- 
cedure ;  the  other  by  2}rivate  examination  upon  writ- 
ten questions,  in  the  ])resence  of  two  schouts.  Tor- 
ture,   while    available    as    a    means    of    extorting 

49 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

confessions,  was  but  seldom  invoked.  Such  crimes 
as  were  committed  were  not  of  a  serious  degree. 
The  penalties  were  fines,  imprisonment,  whipping, 
the  pillory,  banishment,  and  death.  The  last  could 
be  inflicted  only  with  the  concurrence  of  the  Direc- 
tor-General and  his  council.  The  fines  collected 
were  distributed  among  the  schout  and  court,  or 
given  to  the  poor. 

ADDITIONAL  COURTS. 

With  some  slight  modifications,  similar  courts 
were  established  on  Long  Island,  in  that  district 
known  as  "  The  Five  Dutch  Towns."  Each  of 
these  towns  had  its  separate  courts,  and  constituted 
a  kind  of  circuit,  over  which  one  schout,  residing  at 
Breukelen,  now  Brooklyn,  presided. 

In  1652  Stuyvesant  had,  b}^  virtue  of  his  office, 
established  a  court  among  the  English  at  Bever- 
wyck — Albany.  In  1656  and  1659,  similar  courts 
were  established  by  Stuyvesant  among  the  Englishs 
settlers  at  Canorasset  (Jamaica)  and  Middleburgh 
(Newton).  These,  the  Patroons'  Courts,  and  the 
Supreme  or  Appellate  Court  of  Amsterdam,  com- 
posed the  judiciary  until  the  capitulation  of  the 
Dutch  to  the  English,  on  September  6th,  1664. 

The  only  material  change  wrought  in  the  public 
affairs  of  the  colony  by  these  events  was  the  change 
of  the  name  of  the  colony  and  city  respectively, 
from  New  Netherlands  and  New  Amsterdam  to 
New  York.    This  name  was  bestowed  by  Col.  Rich- 

50 


ADDITIOXxVL  COURTS. 

ard  XicoUs  in  honor  of  James,  Duke  of  York, 
whom  he  represented. 

FINAL  OCCUPATIOX  AND  ABDICATION  OF  THE  DUTCH. 

From  this  period  onward,  the  Enghsh  were  the 
governors  of  Xew  York.  On  August  9th,  1673, 
the  city  of  New  York  was  temporarily  reoccupied 
by  the  Dutch,  but  finally  and  forever  abdicated  in 
favor  of  the  English,  under  a  treaty  signed  by  the 
States  General  at  London. 


.51 


CHAPTER  II. 


EARLY  ENGLISH  SOVEREIGNTY. 

Basis  of  English  Rule — Colonial  Conditions 
— International  Claims  to  New  York — 
Conflicting  Land  Titles  —  Territory 
Claimed    by    England — Administration    of 

NiCOLLS NlCOLLS^  TaCT PEACEABLE  SUR- 
RENDER OF  New  Amsterdam — Defection  of 
Dutch  Officials — Policy  of  Nicolls — Dis- 
content OF  English  —  Hempstead  Conven- 
tion— DuKE^s  Laws — Animosity^  of  English 
— Scope  of  the  Royal  Charter — Organiza- 
tion OF  Judicature  under  the  Hempstead 
Convention — Courts  of  the  Three  Ridings 
— Municipal  Court  of  the  City  of  New 
York  —  Powers  Conferred  on  Mayor  and 
Aldermen — May^or^s  Court. 

basis  of  english  rule. 

The  basis  of  English  rule  of  the  province  of 
New  York  was:  First,  the  royal  patent  of  the 
English  monarch,  Charles  II,  to  his  brother,  James, 
Duke  of  York,  dated  March  12th,  16f)4  (old  reck- 
oning) ;  second.  Colonel  Richard  NicoUs'  commis- 
sion from  the  Duke  to  act  as  his  deputy-governor; 

53 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

third,  the  proclamation  of  Nicolls  addressed  to  the 
inhabitants  of  Long  Island,  West  Chester,  and 
Staten  Island,  from  New  Utrecht  Bay,  and  dated 
August  18th,  1864  (old  reckoning)  ;  fourth,  the 
terms  of  capitulation  exchanged  between  Nicolls 
and  the  Dutch  inhabitants  of  New  Amsterdam. 

COLONIAL  CONDITIONS. 

To  fairly  comprehend  the  judicial  status  and 
political  situation  of  New  York  under  the  English, 
we  must  adapt  international  law  of  that  period  to 
the  fundamental  elements  of  English  polity  and 
administration  as  above  outlined.  This  political 
problem,  worthy*  of  the  genius  of  Edmund  Burke, 
can  be  solved  by  no  ill  advised  and  superficial  con- 
sideration of  the  conflicting  principles  impressed 
on  the  new  world  by  two  nations  so  dissimilar  in 
their  traditions,  institutions,  and  aspirations. 

Even  at  this  late  day  time  has  not  completely 
eradicated  the  seeds  scattered  on  this  virgin  soil  by 
the  first  settlers.  Their  national  characteristics  are 
deeply  rooted  in  the  jcustoms  and  posterity  whicli 
is  theirs.  Long  after  the  American  colonies  had 
foresworn  all  foreign  allegiance,  their  European 
origin  has  often  been  the  mainspring  of  their  ac- 
tion, social  and  political.  . .  >  , 

INTERNATIONAL   CLAIMS   TO   NEW   YORK. 

The  province  of  New  York  had  been  claimed  by 
three    great    powers    of    Europe,    viz:    England, 

54 


INTERNATIONAL  CI^4IMS  TO  NEW  YORK. 

France  and  Holland.  The  French  claim  was  the 
outgrowth  of  the  early  exploration  and  settlement 
by  French  pioneers,  of  the  River  St.  Lawrence  and 
its  tributaries.  These  intrepid  French  voyageurs 
had  descended  Lake  Champlain,  in  the  northern 
part  of  the  state  of  New  York,  and  taken  posses- 
sion of  the  soil,  as  original  discoverers,  in  the  name 
of  the  King  of  France. 

The  claim  of  Holland  found  its  origin  in  a  like 
claim  to  the  territory  embraced  by  the  Connecticut 
and  Delaware  Rivers,  and  the  soil  contiguous  to 
their  banks.  If  possession  be  nine-tenths  of  the 
law,  the  Dutch  claim  seemed  best  founded. 

England's  claim  was  most  justly  based  on  Cab- 
ot's discovery  in  1497,  under  commission  from 
Henry  VII,  of  what  now  constitutes  North  Amer- 
ica. The  entire  Atlantic  coast  was  straightway 
settled  by  English  subjects,  who  acted  under 
Crown  grants.  This  Enghsh  occupancy  antedated 
that  of  the  Dutch,  whom  the  English  regarded  as 
trespassers  who  had  wedged  themselves  in  between 
the  colonies  of  Virginia  and  New  England.  Nu- 
merous protestations  had  been  lodged  at  the  Court 
of  Holland  against  this  unwarranted  invasion  of 
English  territory,  bui  the  internal  affairs  of  Eng- 
land at  that  period  made  it  either  impolitic  or  in- 
convenient to  interfere,  and  no  action  was  taken  to 
make  good  British  title  by  resort  to  arms,  until  the 
year  1664. 

55 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 
CONFLICTING  LAND  TITLES. 

The  logical  and  legal  effect  of  these  conflicting 
claims  was  to  give  rise  to  a  long  and  vexatious 
series  of  land  suits,  in  which  title  was  derived  on  the 
one  side  from  the  Dutch,  and  on  the  other  urged 
through  English  dominion. 

The  entire  question  turned  on  the  point  whether 
England  had  annexed  this  territorry  by  prior  dis- 
covery, or  whether  by  conquest  and  invasion,  it  had 
been  reduced  to  an  English  dependency.  If  the 
former  contention  were  tenable,  the  English  com- 
mon law  was  paramount,  and  had  from  the  date  of 
discovery  been  the  law  of  the  land. 

If,  however,  it  be  conceded  that  English  domina- 
tion was  due  to  the  success  of  the  British  arms,  the 
law  remained  as  it  had  been  before  the  conquest, 
and  was  so  applicable  to  all  cause.s  of  action  which 
had  their  origin  prior  thereto.  Taking  this  latter 
view  of  the  matter,  the  Dutch  possession  was  that 
of  mere  squatters  holding  possession  adverse  to  the 
real  owners  of  the  soil,  and  of  no  legal  effect,  and 
subject  to  removal  and  confiscation  upon  the  forc- 
ible or  other  entry  of  the  lords  paramount.  The 
vacillating  tactics  of  the  colonial  judges,  who  never 
sharply  and  clearly  defined  their  position  in  this 
matter,  has  left  the  title  of  eminent  domain  in  doubt 
and  uncertainty.  From  the  first  formal  English 
possession,  the  English  common  law  has  received 
judicial  sanction  and  controlled  the  decisions  of 
the  New  York  courts. 

56 


ADMINISTRATION  OF  NICOIXS. 


TERRITORY  CLAIMED  BY  ENGLAND. 

We  deem  it  proper  in  this  connection,  to  consider 
to  what  territory  England  laid  claim.  The  land 
granted  by  Charles  II  to  his  brother,  the  Duke  of 
York,  by  royal  patent,  included  the  entire  Atlantic 
coast,  from  the  state  of  JNIaine  to  the  Allegheny 
Mountains,  and  that  portion  more  particularly  de- 
scribed as  bounded  on  the  east  by  the  Connecticut 
River,  and  on  the  west  by  the  Delaware  River  and 
adjacent  territory.  This  soil  was  claimed  by  the 
King  as  his  private  domain,  and  by  royal  preroga- 
tive, could  be  alienated  at  royal  pleasure. 

By  his  grant  to  the  Duke  of  York  the  King  had 
conveyed  New  York  state,  parts  of  New  Jersey, 
the  whole  of  Long  Island,  Staten  Island,  portions 
of  Connecticut,  and  neighboring  smaller  islands, 
for  a  consideration  of  forty  beaver  skins  a  year. 
A  privilege  which  ran  with  this  cession  of  territory 
was  the  right  to  give  the  law  thereto,  subject  only 
to  the  sole  restriction  that  it  be  agreeable  to  the 
laws  and  statutes  of  England.  The  English  King 
and  priv}^  council  reserved  to  themselves  the  right 
to  hear  appeals  from  the  inhabitants  of  the  terri- 
tories. New  York  thus  became  a  proprietary 
province,  similar  in  many  respects  to  INIaryland  and 
Pennsylvania. 

ADMINISTRATION  OF  NICOLLS. 

The  Duke  of  York's  first  act  upon  receiving  this 

57 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

grant  was  to  commission  Colonel  Richard  Nicolls 
as  deputy-governor  of  the  province,  for  the  purpose 
of  carrying  into  effect  the  powers  granted  by  royal 
patent.  It  was  especially  directed  that  this  legisla- 
tive power  should  be  by  ordinance  and  not  by 
statute.  The  compilation  of  a  code  of  laws  to  ob- 
tain in  his  possessions  was  entrusted  by  the  Duke 
to  his  brother. 

Armed  with  these,  the  King's  patent  and  the 
Duke's  commission,  NicoUs  sailed  with  a  fleet  to 
take  possession. 

NICOLLS^  TACT. 

By  an  act  of  sagacity  and  foresight,  immediately 
after  his  arrival,  Nicolls  set  about  conciliating  the 
English  inhabitants  of  the  province.  From  New 
Utrecht  Bay  he  issued  a  proclamation  by  which  he 
promised  them  all  the  constitutional  rights  of  Eng- 
lish citizens,  and  in  return  sought  their  assistance  in 
his  struggle  against  the  Dutch.  This  proclamation 
later  led  to  popular  protest  when  the  Duke  of  York 
denied  them  the  right  to  choose  representatives  of 
their  own,  for  the  enactment  of  laws  for  the  pro- 
vince. 

PEACEABLE  SURRENDER  OF  NEW  AMSTERDAM. 

Contrary  to  the  expectation  of  Nicolls,  who  had 
anticipated  a  firm  resistance  from  the  inhabitants, 
the  city  of  New  Amsterdam  tamely  surrendered  to 
the  English  invaders.    We  have  already  made  clear 

58 


PEACEABLE  SURRENDER  OF  AMSTERDAM. 

to  our  readers  the  universal  dissatisfaction  of  the 
people  of  New  Amsterdam  with  their  government. 
Under  the  baneful  influences  engendered  by  this 
unhappy  state  of  affairs,  need  we  wonder  that  the 
English  were  hailed  by  the  inhabitants  as  deliverers 
from  oppression  and  tyranny,  rather  than  conquer- 
ors who  would  impose  the  master's  yoke  upon  them. 
Any  change  would  be  for  them  an  escape  from  arbi- 
trary and  intolerable  conditions,  under  which  they 
had  until  then  lived. 

Nicolls,  wisely  gauging  the  popular  mind,  pub- 
lished a  proclamation  guaranteeing  to  the  Dutch 
certain  religious  and  civil  rights,  and  a  continuance 
of  the  government  of  New  Amsterdam  according 
to  the  Dutch  customs.  Hence  it  was  that  the  Dutch 
expected  a  more  representative  and  liberal  govern- 
ment under  English  rule  than  they  had  heretofore 
experienced  under  tlie  director-generals  appointed 
by  the  West  India  Company. 

On  the  27th  day  of  August,  1664,  the  city  of 
New  Amsterdam,  without  striking  a  blow,  surren- 
dered to  the  English.  By  the  articles  of  surrender, 
the  Dutch  were  granted  certain  rights,  such  as  free- 
dom of  religious  worship,  the  enjoyment  of  their 
customs  of  inheritance,  confirmation  of  all  judg- 
ments rendered  prior  thereto,  the  right  of  appeal  to 
the  States  General  of  Holland,  the  continuance  of 
the  present  incumbents  in  office  until  their  succes- 
sors, who  would  be  required  to  take  the  oath  of  alle- 
giance to  the  English  Crown,  were  elected. 

59 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 


DEFECTION  OF  DUTCH  OFFICIALS. 

When  new  officers  had  been  elected,  much 
reluctance  was  manifested  by  the  Dutch  magis- 
trates to  taking  the  required  oath  of  allegiance. 
Some  of  the  more  important  citizens  who  had  acted 
as  burgomasters,  schepens,  and  schouts,  flatly  re- 
fused to  take  any  such  oath,  and  departed  for  Hol- 
land. New  magistrates,  who  acquiesced  in  NicoUs' 
demands,  were  elected  in  their  place,  but  not  more 
than  150  of  the  inhabitants  of  New  Amsterdam 
were  induced  to  take  the  oath. 

POLICY  OF  NICOLLS. 

The  exigency  of  so  revolutionary  an  epoch  in  the 
affairs  of  New  York  demanded  administrative  tact 
and  ability  of  a  high  order;  these  Nicolls  possessed 
in  a  marked  degree.  Measures  of  conciliation  were 
necessary  to  foster  allegiance  to  the  English.  With 
rare  and  consummate  tact  had  Nicolls  risen  to  the 
occasion  and  reconciled  differences. 

The  purely  Dutch  towns  on  the  upper  Hudson, 
the  city  of  New  Amsterdam,  and  the  five  Dutch 
towns  on  Long  Island,  were  permitted  to  retain 
their  existing  forms  of  government,  which  were 
found  efficient  and  adequate.  By  this  master  stroke, 
Nicolls  rendered  these  subjects  loyal  to  his  govern- 
ment. 

DISCONTENT  OF  ENGLISH. 

The  recalcitrant  and  rebellious  attitude  of  the 

60 


HEMPSTEAD  CONVENTION. 

English  speaking  inhabitants  was  the  cause  of  much 
difficulty  to  the  administration  of  NicoUs,  and  called 
forth  all  his  diplomacy  and  statesmanship.  They 
were  settled  in  towns  situated  in  what  is  now  Suf- 
folk County,  Westchester,  and  Staten  Island,  which 
had  been  from  the  first  attached  to  the  jurisdiction 
of  Connecticut.  In  response  to  NicoUs'  proclama- 
tion above  mentioned,  calling  them  to  arms,  they 
had  raised  a  force  to  co-operate  with  the  English 
fleet  in  the  subjugation  of  New  Amsterdam.  For- 
merly they  had  identified  themselves  with  the  colony 
of  Connecticut,  with  whose  religious  and  political 
principles  they  were  entirely  in  accord.  To  win 
them  over  to  allegiance  to  Nicolls'  government, 
equal,  if  not  greater,  liberties  must  be  granted 
them. 

HEMPSTEAD  CONVENTION. 

Two  days  after  the  surrender  of  New  Amster- 
dam, Nicolls  had  promised  them  that  "Deputys 
shall  in  convenient  time  and  place  be  summoned  to 
propose  and  give  their  advice  in  all  matters  tending 
to  ye  peace  and  benefit  of  Long  Island."  Accord- 
ingly on  March  1,  1665,  what  is  known  as  the 
Hempstead  Convention  was  convened  at  Hemp- 
stead. Two  delegates  were  present  from  each  of 
the  sixteen  towns  on  Long  Island,  and  from  West- 
chester on  the  mainland. 

61 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 


DUKE  S  LAWS. 

A  code  of  laws,  since  known  as  the  Duke's  Laws, 
was  submitted  by  the  deputy-governor  to  the  con- 
sideration of  the  convention.  The  sections  of  this 
code  relating  to  capital  punishment  were  a  substan- 
tial re-embodiment  of  the  Mosaic  code  of  Connecti- 
cut. With  slight  changes,  the  code  was  ratified  and 
adopted  for  the  government  of  the  towns  repre- 
sented. This  code  had  been  compiled  by  the  Duke's 
brother  in  Engjland,  and  was  a  heterogeneous  med- 
ley of  English  and  Dutch  law,  well  adapted  to  the 
conveniences  and  customs  of  the  people  for  whom 
it  was  intended.  It  was  later  extended  to  the  entire 
province  of  New  York.  It  conveyed  the  impres- 
sion of  having  been  prepared  by  one  familiar  with 
the  New  England  codes,  and  the  judicial  system 
of  Holland.  In  1688  this  code  was  entirety  repealed 
by  the  first  General  Assembly  after  the  revolution 
of  1688,  as  being  in  spirit  contrary  to  the  constitu- 
tion of  England,  and  the  practice  of  the  govern- 
ment of  their  Majesties'  other  plantations  in 
America. 

In  1757,  the  first  historian  who  has  written  on 
this  subject,  says  that  all  "laws  made  here  antece- 
dent to  this  period  (1691)  are  disregarded  both  by 
the  legislature  and  the  courts  of  law ;  the  validity  of 
the  old  grants  of  the  powers  of  government,  in 
several  American  Colonies,  is  very  much  doubted  in 
this  province." 

62 


SCOPE  OF  THE  ROYAL  CHARTER. 


ANIMOSITY  OF  THE  ENGLISH. 

Much  animositj^  was  displayed  by  the  EngHsh 
inhabitants  against  their  deputies,  for  their  read}^ 
acquiescence  in  the  proceedings  of  the  Hempstead 
convention.  Most  of  them  had  signed  a  memorial 
to  the  Duke  of  York,  appro\dng  his  laws.* 

In  1666  an  ordinance  was  passesd,  which  declared 
it  a  penal  offence  to  in  any  way  reflect  on  those  who 
had  thus  committed  their  constituencies  to  this  ob- 
noxious code,  by  subscribing  to  the  hypocritical  and 
obsequious  address  to  His  Royal  Highness,  the 
Duke  of  York.  It  was  prescribed  that  the  offender 
be  brought  before  the  Court  of  Sessions,  and  if  the 
gravamen  of  the  offence  so  warranted,  held  for  the 
next  assize. 

SCOPE  OF  THE  ROYAL  CHARTER. 

From  the  first  a  measure  of  home  rule  had  been 
granted  by  the  English  Crown  to  the  colony  of 
New  York.  This  was  the  effect  of  the  royal  grant 
from  the  English  sovereign  to  the  Duke  of  York. 
With  the  sole  reservation  of  a  right  of  appeal  from 
the  decisions  of  the  colonial  courts  to  the  mother 
country,  the  powers  of  government  had  been  alien- 
ated to  the  Duke  and  his  deputies. 

Acting  under  this  sweeping  grant,  the  deputy- 
governor  of  New  York  had  enacted  that  "no  jury 

*We  can  but  admire  Nicolls'  tact  in  thus  having  the  deputies  put 
their  names  to  a  document,  which  they  knew  was  unpopular. 

63 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

shall  exceed  the  number  of  seven,  nor  be  under  six, 
unless  in  special  cases  upon  Life  and  Death  the  jus- 
tices shall  think  fit  to  appoint  twelve."  A  vote  of 
the  majority  was  decisive  in  civil  cases. 

ORGANIZATION   OF  JUDICATURE  UNDER  THE  HEMP- 
STEAD CONVENTION. 

The  part  of  Nicolls'  Hempstead  code  most  per- 
tinent to  our  subject  relates  to  the  establishment  of 
courts  of  law.  By  the  adoption  of  this  scheme  of 
government,  a  town  court  was  alloted  to  each  town, 
with  jurisdiction  in  civil  actions,  if  the  amount  in 
litigation  was  less  than  five  pounds  sterling.  The 
personnel  of  this  court  consisted  of  a  constable  and 
two  overseers,  who  might  for  the  better  rendition  of 
justice,  add  a  justice  of  the  peace  to  their  number. 

COURTS  OF  THE  THREE  RIDINGS.. 

A  court  of  much  wider  jurisdiction  was  likewise 
established  for  what  were  known  as  the  three  ridings 
of  Long  Island,  Westchester,  and  Eastchester. 
Terms  of  court  were  set  for  twice  in  the  year,  to  be 
held  by  justices  of  the  peace  of  the  several  ridings, 
to  take  cognizance  of  all  cases,  civil  and  criminal, 
involving  and  amount  not  less  than  five  pounds 
sterling;  their  judgment  for  amounts  less  than 
twenty  pounds  sterling  was  final. 

A  court  which  exercised  general  assize  jurisdic- 
tion composed  of  the  governor,  council,  and  magis- 

64 


MUNICIPAL  COURT  OF  THE  CITY  OF  NEW  YORK. 

trates  of  each  town,  convened  in  the  city  of  New 
York,  to  hear  appeals  properly  brought  from  the 
inferior  courts,  and  exercised  original  jurisdiction 
in  prosecutions  for  crime.  Unless  an  appeal  to  the 
Crown  were  permitted,  this  was  the  court  of  last 
resort.  It  was  through  this  medium  that  the  Duke 
and  his  council  in  England  promulgated  their  acts 
and  ordinances,  and  was  the  administrative  organ 
of  the  deputy  and  council.  Its  jurisdiction  was  co- 
extensive with  the  territory  covered  by  the  Duke's 
possessions,  and  included  the  Pemaquid  country 
(between  the  St.  Croix  and  the  Kennebec  in 
Maine),  Martha's  Vineyard,  Nantucket,  Fisher's 
and  Gardiner's  Islands,  several  towns  now  in  Con- 
necticut, New  Amstel,  now  Newcastle,  in  Delaware, 
and  for  a  time  New  Jersey,  as  well  as  New  York 
proper,  as  far  north  and  west  as  Schenectady. 

MUNICIPAL  COURT  OF  THE  CITY  OF  NEW  YORK. 

Nicolls'  next  care  was  the  organization  of  the 
Burgomasters  and  Schepens  Court,  or  the  munic- 
ipal court. 

On  June  12th,  1665,  by  proclamation  setting 
forth  his  commission  and  authority,  and  that  he 
acted  on  mature  reflection  and  advice,  he  proceeded 
to  "revoke  and  discharge  the  form  and  ceremony  of 
this  government  of  this  his  Majestie's  town  of  New 
York,  under  the  name  or  names,  style  or  styles  of 
Schout,  Burgomaster  and  Schepens;"  accordingly 
these  courts  were  from  that  time  dissolved.     To 

65 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

quote  further,  "for  the  future  administration  of 
justice  by  the  laws  estabhshed  in  these  the  territorys 
of  his  Royal  Highness,  wherein  the  welfare  of  all 
the  inhabitants  and  the  preservation  of  all  their 
rights  and  privileges  granted  by  the  articles  of  the 
town  upon  surrender  under  his  Majestie's  obedience 
are  concluded,"  then,  "that  by  a  particular  commis- 
sion such  persons  shall  be  authorized  to  put  the  laws 
in  execution  in  whose  abilities,  prudence  and  good 
affections  to  his  Majestie's  service  and  peace  and 
happiness  of  this  government,  have  special  reason 
to  put  confidence  in  which  persons  so  constituted 
and  appointed  shall  be  known  and  called  by  the 
name  and  style  of  Major  (Mayor),  Aldermen  and 
Sheriff,  according  to  the  custom  of  England  in 
other  his  Majestie's  corporations." 

After  reciting  that  it  had  been  found  necessary 
"to  discharge  the  form  of  government  late  in  prac- 
tice to  the  end  that  the  course  of  justice  for  the 
future  may  be  loyally,  equally  and  impartially 
administered  to  all  his  Majestie's  subjects  as  were 
inhabitants  as  strangers"  an  ordinance  issued  on  the 
same  day  declared  the  inhabitants  of  Manhattan 
Island  to  be  forever  accounted,  nominated,  and 
established  as  one  body  politique  and  corporate, 
under  the  government  of  a  mayor,  aldermen,  and 
sheriff. 

POWERS  CONFERRED  ON  MAYOR  AND  ALDERMEN. 

By  this  act  of  constitutional  creation,  full  power 
and  authority  was  given  to  the  mayor  and  aldermen 

66 


POWERS  CONFERRED  ON  MAYOR  AND  ALDERMEN. 

to  perform  the  functions  of  government  "according 
to  the  general  laws  of  the  government  and  such 
peculiar  laws  as  are  or  shall  be  thought  convenient 
and  necessary  for  the  good  and  welfare  of  the  cor- 
poration; and  to  appoint  other  officers  for  the 
orderly  execution  of  justice." 

MAYOR^S  COURT. 

Three  days  later  these  officials  met  at  the  "Stadt 
Huys,"  and  effected  the  organization  of  what  was 
called  the  Mayor's  Court,  of  which  they  were  the 
first  members. 

This  court  continued  to  dispense  justice  for  a 
hundred  and  fifty-six  years,  when  its  jurisdiction 
was  assumed  by  other  tribunals.  Like  the  Courts  of 
Justices  of  the  Peace  for  the  country  towns,  this 
Mayor's  Court  was  the  court  of  sessions  for  the  city. 
Records  of  court  proceedings  were  kept  in  Dutch 
and  English,  and  with  the  exception  of  trial  by 
jury,  the  Dutch  procedure  was  retained. 


67 


CHAPTER  III 


COURTS     ESTABLISHED     BY     HEMP 
STEAD  CONVENTION. 


Court  of  Assize — First  Session — Special 
Functions  of  the  Court — Denial  of  Peti- 
tion FOR  Popular  Assembly — The  Duke^s 
Laws — The  Three  Ridings — Their  Govern- 
ment— Courts  of  Sessions — Jurisdiction — 
Jury  Trials — Method  of  Trial — Justices  of 
THE  Peace — Appeals — How  Taken. 

COURT  OF  ASSIZE FIRST  SESSION. 

The  General  Court  of  Assize  convened  at  the 
Fort  in  New  York,  on  the  last  Thursday  of  Sep- 
tember (the  28th),  1665,  and  remained  in  session 
until  the  following  4th  of  October.  It  included  the 
governor,  his  council,  and  two  justices  of  the  peace 
for  the  three  ridings ;  its  sessions  were  held  annually, 
seldom  lasting  longer  than  a  week.  Special  sessions 
of  this  court  were  summoned  under  a  warrant  from 
the  governor,  on  the  information  of  parties  entitled 
to  immediate  relief.  A  capital  offence  or  a  violation 
of  the  navigation  laws,  and  other  crimes  of  public 
moment,  on  information  duly  laid,  were  grounds 
for  a  Court  of  Oyer  and  Terminer,  if  more  than 

69 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

two  months  would  intervene  before  the  next  Court 
of  Assize. 

SPECIAL  FUNCTIONS  OF  THE  COURT. 

This  General  Court  of  Assize  possessed  the  some- 
what complex  and  twofold  characteristics  of  a  law 
tribunal  and  legislative  body.  Its  records  are  mainly 
ordinances,  summons,  subpoenas,  commissions  of 
officers,  oaths  of  allegiance  and  of  office,  letters  of 
denization,  popular  petitions  and  answers  thereto, 
cases  on  appeal  from  inferior  courts,  trials  in  civil, 
criminal,  equity,  admiralty,  and  prize  cases. 

DENIAL  OF  PETITION  FOR  POPULAR  ASSEMBLY. 

In  1669,  after  the  retirement  of  Nicolls  as  gov- 
ernor, and  during  the  administration  of  his  succes- 
sor. Lord  Lovelace,  the  English  towns  of  the 
province  presented  a  petition  for  an  assembly  of 
delegates,  who  should  advise  the  governor  and 
council  upon  laws  for  the  good  and  weal  of  the  com- 
monwealth. This  was  in  accordance  with  a  promise 
made  by  Nicolls. 

The  petition  was  denied  on  the  ground  that 
Nicolls'  commission  as  deputy-governor  included  no 
such  power,  and  moreover,  that  by  instructions 
given  to  the  then  governor,  the  existing  laws  were 
not  subject  to  amendment  or  repeal. 

Thus  we  see  that  while  this  conciliatory  conduct 
of  Nicolls  gave  entire  satisfaction  to  his  masters,  it 

70 


LA  WES. 


had  a  contrary  effect  with  his  constituents,  among 
whom  it  bred  dissatisfaction  and  resentment. 


THE  DUKE  S  LAWS. 


We  will  here  quote  an  extract  from  the  Duke's 
laws,  which  were  the  first  to  obtain  in  this  country. 
The  opening  paragraph,  couched  in  the  quaint 
English  of  three  centuries  ago,  reads  as  follows : 


"  LAWES. 


"Lawes  established  by  the  authority  of  His  Ma- 
jesties lawes  and  patents  granted  to  His  Royal 
Highness,  Duke  of  York  and  Albany,  bearing  date 
the  12th  day  of  JNIarch  in  the  16th  year  of  Ye 
Reigne  of  our  Sovereign  Lord,  King  Charles, 
Charles  II,  digested  into  one  volume  for  the  public 
use  of  the  territories  in  America  under  the  govern- 
ment of  His  Royal  Highness,  collected  out  of  the 
several  laws  now  in  force  in  His  JNIajestie's  Amer- 
ican Colonies  and  plantations;  published  March  1st, 
Anno  Domini,  1664,  at  a  general  meeting  at  Hemp- 
stead, Long  Island,  by  virtue  of  a  commission  from 
His  Royal  Highness,  James,  Duke  of  York  and 
Albany,  given  to  Colonel  Richard  NicoUs,  deputy- 
governor,  bearing  date  the  2nd  day  of  April,  1664." 
The  subjects  were  alphabetically  arranged,  and  in 
perusing  them  we  are  impressed  with  the  fact  that 
the  compiler  was  familiar  with  the  New  England 
codes,  and  in  particular  with  that  part  of  them  deal- 
ing with  capital  offences. 

71 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

There  are  also  to  be  found  gleanings  from  the 
Dutch  system  of  administering  judicial  affairs, 
principally  their  practice  of  arbitration,  which  in 
some  form  or  other,  has  survived  in  the  procedure 
of  our  courts  to  the  present  day,  and  would  seem  to 
have  become  inseparable  therefrom. 

These  laws  were  adopted  by  the  convention  of  the 
English  speaking  inhabitants,  originally  for  the 
government  of  the  English  towns,  since  it  was  con- 
sidered imprudent  by  NicoUs  to  interfere  with  the 
Dutch  government.  He  took  under  his  control  only 
those  parts  of  the  province  inhabited  by  the  English 
settlers,  comprising  Long  Island,  Westchester,  and 
Staten  Island,  which  he  named  "Yorkshire,"  which 
like  the  Yorkshire  in  England,  he  divided  into  three 
districts  or  ridings. 

THE    THREE    RIDINGS THEIR    GOVERNMENT. 

What  is  now  Suffolk  County  was  the  East  Rid- 
ing, Staten  Island,  Kings  County,  and  Newton 
comprised  the  West  Riding,  and  the  remainder  of 
Queens  County  and  Westchester,  the  North  Rid- 
ings. 

The  government  established  in  these  ridings  was 
of  a  very  simple  and  primitive  character ;  there  was 
a  high  sheriff  over  the  entire  shire,  and  a  deputy- 
sheriff  for  each  riding;  constables  represented  the 
latter  in  the  towns,  and  they,  with  the  town  over- 
seers, had  charge  of  the  local  government,  which 
was  carried  on  by  town  meetings;  there  were  also 

72 


JURISDICTION. 

justices  of  the  peace  for  each  locaUty.  The  officers 
above  mentioned  were  the  appointees  of  the  gov- 
ernor to  hold  office  during  his  pleasure  only. 

We  have  already  treated  of  the  organization  and 
duties  of  these  different  courts,  and  what  follows  is 
but  supplemental  to  what  has  been  already  stated. 

COURTS  or  SESSIONS. 

The  following  clause  relating  to  the  establishment 
of  higher  courts  is  found  in  the  "Lawes."  "That 
the  names  of  the  several  courts  to  be  held  in  each 
riding  three  times  a  year  shall  be  called  the  Court 
of  Sessions."  In  continuation,  the  same  article  goes 
on  to  speak  of  the  respect  due  to  "courts  which  so 
nearly  represent  his  Maj.estie's  sacred  person,  and 
that  such  order,  gravity  and  decorum  which  doth 
manifest  the  authority  of  the  courts  may  be  sus- 
tained." 

The  sessions  were  to  begin  the  first  Tuesday  in 
June,  in  the  East  Riding,  the  second  Tuesday  in 
June  in  the  North  Riding,  and  the  third  Tuesday 
in  June  in  the  West  Riding.  The  second  court  of 
sessions  was  to  be  held  the  first,  second,  and  third 
Wednesdays  of  December,  and  the  third  sessions  on 
the  first,  second,  and  third  Wednesdays  of  March, 
in  the  East,  North,  and  West  Ridings  respectively. 
The  sessions  were  not  to  exceed  three  days  in  dura- 
tion. 

JURISDICTION. 

The  two  general  courts,  besides  the  smaller  town 

73 


THE  COURTS  OF  THE  STATE  OE  NEW  YORK. 

courts,  were  originally  the  only  courts  in  the  colony. 
Action  on  contract  or  tort  was  triable  in  the  juris- 
diction where  the  cause  of  action  arose.  Bail  might 
be  accepted  in  cases  of  assault  and  battery,  breach 
of  the  peace  and  similar  offences,  by  the  justice  of 
the  locality  where  the  offence  was  committed,  or  in 
lieu  thereof,  the  offender  was  committed  to  prison 
until  the  next  sessions. 

Actions  for  five  pounds  sterling  or  less  were 
triable  out  of  court,  by  two  arbitrators,  who  were 
usually  the  overseers  of  the  town.  Should  the  over- 
seers be  unavailable  for  that  purpose,  the  constable 
of  the  locality  was  authorized  to  select  the  arbitra- 
tors, who  were  to  be  two  indifferent  persons;  this 
procedure  was  a  survival  of  the  Dutch  custom  of 
New  Amsterdam.  Should  the  disputants  refuse  to 
abide  by  the  judgment  of  the  arbitrators  selected, 
three  other  indifferent  persons  were  chosen  at  the 
dissenters'  charge,  to  render  final  judgment.  A 
fixed  fee  was  allowed  the  constable  and  justice  for 
their  part  in  the  trial. 

As  already  stated,  actions  involving  not  less  than 
five,  nor  more  than  twenty  pounds  were  to  be  tried 
by  the  Court  of  Sessions,  from  whose  judgment 
there  was  no  appeal,  if  the  amount  did  not  exceed 
twenty  pounds.  Before  the  rendition  of  the  jury's 
verdict,  plaintiff  had  the  right  upon  payment  of 
costs,  to  withdraw  his  action. 

The  complaint  was  to  be  in  writing  and  filed  in 
the  office  of  the  clerk,  eight  days  before  the  day  of 

74 


JURISDICTION. 

hearing,  so  as  to  enable  the  defendant  to  file  an 
answer.  The  judgment  was  endorsed  on  the  com- 
plaint or  answer,  as  the  case  might  be,  and  all 
papers  and  evidence  relating  to  the  case  were  to 
remain  on  file  with  the  clerk  of  the  court. 

JURY  TRIAL— METHOD  OF  TRIAL.  \ 

All  cases  were  triable  by  a  jury  chosen  in  the  fol- 
lowing manner :  A  list  of  the  causes  for  trial  at  the 
next  session  was  given  to  the  clerk  of  the  court, 
the  sheriff  or  under-sheriff,  so  that  warrants  might 
be  issued  summoning  jurors,  usually  the  overseers 
of  the  neighborhood,  to  hear  the  different  cases. 
Should  a  sufficient  number  not  be  available,  the 
sheriff  was  authorized  to  select  able  and  discreet 
men  "as  shall  either  attend  the  court  upon  other 
occasions,  or  shall  happen  to  be  inhabitants  of  the 
towne  where  the  court  shall  be  held." 

It  was  the  province  of  the  jury  to  try  the  action 
between  party  and  party,  determine  the  facts  of  the 
case,  and  award  damages  according  to  the  evidence. 
When  the  evidence  had  been  fully  submitted  and  the 
case  tried,  the  governor  and  council,  or  in  their  ab- 
sence, the  senior  justice,  pronounced  the  judgment 
of  the  court,  and  instructed  the  jury  as  to  the  points 
of  law  which  had  arisen  during  the  trial. 

The  compensation  of  jurors  was  three  shillings, 
six  pence  per  day,  which  were  collected  from  the 

75 


\ 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

fees  and  charges  of  each  court;  or  if  these  moneys 
were  insufficient,  from  the  pubhc  treasury. 

As  already  stated,  the  number  of  jurors  was  not 
to  exceed  seven,  nor  be  less  than  six,  except  in  capi- 
tal cases,  where  it  was  discretionary  with  the  judge 
to  appoint  a  jury  of  twelve. 

In  cases  of  patent  ambiguity,  in  which  the  jury 
could  not  agree,  a  special  or  hypothetical  verdict 
might  be  submitted  for  interpretation  by  the  judge, 
whose  duty  it  was  to  direct  a  verdict  for  the  prevail- 
ing party,  based  on  the  law  and  the  jury's  findings 
of  fact. 

It  was  the  jury's  province  to  determine  questions 
of  fact  on  the  evidence  submitted.  If  they  were  not 
clear  on  a  point  of  law  or  fact,  or  wished  to  be  in- 
structed on  some  issue  raised,  they  were  at  liberty 
to  come  into  open  court,  and  invoke  the  advice  of 
the  bench.  The  verdict  of  the  majority  of  the  jury 
was  final  and  binding  on  the  minority,  who  were  de- 
prived of  any  allowance  of  protest. 

In  capital  cases,  where  the  verdict  meant  life  or 
death,  a  unanimous  verdict  was  required.  Before 
the  jury  retired  for  deliberation,  the  bench  was  to 
briefly  deliver  its  charge  as  to  the  evidence  and  law 
of  the  case. 

None  were  eligible  to  serve  as  jurors  who  were  in 
any  way  related  to  the  party  or  parties  involved  in 
the  litigation;  but  after  being  accepted  and  sworn, 
a  juror  could  not  be  challenged.  Should  a  juror 
presume  to  reveal  the  discussions  and  opinions  of 

76 


JURY  TRIAL METHOD  OF  TRIAL. 

dissenting  jurors,  or  other  proceedings  of  the  jury, 
he  was  subjected  to  a  fine  of  ten  shillings,  and  fur- 
ther punished  as  the  justices  saw  fit. 

JUSTICES  OF  THE  PEACE. 

The  justice  of  the  peace  or  the  sheriff  was  em- 
powered to  issue  writs  or  warrants,  which  were  to 
be  executed  by  an  inferior  officer  in  any  of  the  rid- 
ings, whether  or  not  the  sheriff  resided  therein. 

In  the  absence  of  the  governor,  lieutenant-gover- 
nor, or  any  of  the  council,  the  oldest  justice  of  the 
peace  was  to  preside  in  the  Court  of  Sessions  and 
pronounce  the  judgment  of  the  court,  unless  phy- 
sically or  mentally  unable  to  do  so,  in  which  case  the 
justices  were  to  agree  among  themselves  as  to  which 
of  their  number  should  do  so.  To  justices  of  the 
peace  was  accorded  the  privilege,  when  they  chose 
to  exercise  it,  to  preside  at  any  of  the  town  meetings 
or  courts  within  their  jurisdiction. 

The  fees  of  the  justice  of  the  peace  and  of  the 
sheriff  and  his  subordinates  were  paid  from  fees  and 
charges  fixed  by  law.  The  justice  was  to  receive  for 
nominating  three  arbitrators  (when  a  case  under 
forty  shillings  was  brought  to  him  by  the  con- 
stable) ,  seven  shillings,  six  pence;  upon  common  ac- 
tions, such  as  slander  and  the  like,  he  was  to  charge 
one  shilling;  for  subpoenaing  the  attendance  of  a 
person,  six  pence;  no  fee  was  allowed  him  on  any 
criminal  or  capital  warrants,  nor  for  sitting  as  a 
justice  on  the  bench. 

77 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

A  justice  of  the  peace  was  at  no  time  allowed, 
while  in  commission,  to  act  as  attorney,  unless 
assigned  to  act  in  that  capacity  by  the  court,  on 
behalf  of  a  poor  person.  For  absenting  himself 
from  any  of  the  sessions  or  assizes  held  in  his  riding, 
a  justice  or  high  constable  was  fined  ten  pounds  for 
each  day's  absence ;  a  petty  constable  was  fined  five 
pounds  for  each  day's  absence.  For  proper  cause 
shown,  the  justices  on  the  bench  might  excuse  the 
absentees. 

APPEALS HOW  TAKEN. 

Appeals  might  be  taken  from  the  Court  of  Ses- 
sions to  the  Court  of  Assize,  but  no  justice  who  had 
sat  as  a  judge  in  the  inferior  court  from  which  the 
case  was  appealed  was  entitled  to  a  vote  in  the 
higher  court;  the  case  must  be  tried  by  those  not 
disqualified  by  participation  in  the  former  trial  of 
the  case,  and  according  to  the  former  evidence,  un- 
less a  witness  whose  testimony  was  material  was 
absent  from,  or  hindered  from  testifying  at,  the 
former  trial. 

Appellant  was  required  to  furnish  ample  security 
for  costs  of  appeal,  and  to  indemnify  the  respond- 
ent, should  his  appeal  prove  unsuccessful.  In  cases 
of  appeal  from  a  misdemeanor,  the  appellant  must 
give  security  for  good  behavior,  or  if  the  offence 
were  capital,  the  party  appealing  was  to  be  kept  in 
jail  until  the  next  assize,  provided  the  latter  were 
held  within  two  months. 

78 


APPEALS HOW  TAKEN. 

All  appeals  and  the  security  given  therefor  were 
recorded  at  the  charge  of  the  party  appealing;  the 
latter  was  required  to  file  with  the  clerk  his  grounds 
of  appeal,  at  least  six  days  prior  to  court  day.  The 
charge  for  an  appeal  was  ten  shillings,  paid  to  the 
court,  and  two  shillings,  six  pence  to  the  clerk  for 
entering  the  same. 


79 


CHAPTER   IV. 


COURT  OF  ASSIZE. 


Origin — Jurisdiction — English  Discontent — 
Popular  Assembly  Disapproved — Personnel 
AND  Terms  of  Court — Functions  of  the 
Court — Amendments — Fees — Extant  Rec- 
ords— Duties  of  the  Secretary — Public  Rec- 
ord— Remarks. 

origin. 

In  this  chapter  we  will  more  fully  treat  of  the 
Court  of  Assize.  This  court  was  the  supreme  judi- 
cial tribunal  of  the  early  English  occupation ;  its  ori- 
gin, however,  must  remain  unknown,  as  there  is  no 
record  showing  by  what  authority  this  high  tribunal 
was  established.  No  provision  for  its  creation  is  to 
be  found  in  any  section  of  the  Duke's  Code  nor  can 
its  inception  be  traced  to  any  other  source.  Al- 
though the  court  is  mentioned  in  the  "  Laws,"  and 
its  jurisdiction  and  general  powers  stated,  no  clause 
is  to  be  found  which  recommends  or  authorizes  its 
creation. 

The  authorities  on  this  point  are  much  at  sea,  and 
shed  but  little  light  on  the  subject.  From  what 
knowledge  is  available  it  is  certain  that  the  court 

81 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

was  merely  a  continuation  of  the  Court  of  the 
Director-General  and  Council,  established  among 
the  Dutch  during  the  governorship  of  Stuyvesant. 

JURISDICTION. 

Whatever  its  origin,  it  was  enacted  by  the  Duke's 
laws,  that  a  term  of  the  Court  of  Assize  should  be 
held  annually  at  the  seat  of  government  in  New 
York.  Its  jurisdiction  was  both  original  and  appel- 
late. By  virtue  of  its  appellate  jurisdiction  this 
court  could  entertain  all  appeals  from  the  inferior 
courts  and  review  any  judgment  of  the  Courts  of 
Sessions,  or  the  town  courts. 

The  court's  original  jurisdiction  embraced  all 
criminal  actions,  and  civil  and  equitable  actions  for 
not  less  than  twenty  pounds,  and  was  extended  to 
capital  offences  and  breaches  of  the  navigation  laws. 

We  glean  from  the  Duke's  laws  that  the  Court 
of  Assize  was  intended  to  be  no  more  than  a  judicial 
tribunal.  At  a  very  early  date,  however,  it  assumed 
some  of  the  functions  of  a  legislative  body, 
although  at  no  time  during  its  existence  did  it  have 
full  powers  in  enacting  laws. 

ENGLISH  DISCONTENT. 

The  English,  who  had  been  bred  to  a  popular  and 
representative  form  of  government,  were  entirely 
disappointed  in  their  hopes  for  an  assembly  of  dele- 
gates to  help  enact  laws  for  the  regulation  of  the 

82 


PERSONNEL  AND  TERMS  OF  COURT. 

colony.  Their  petitions  for  redress  of  grievances 
were  therefore  continually  addressed  to  the  Court 
of  Assize,  the  highest  tribunal  within  the  province. 

The  great  number  of  justices  of  the  peace  who 
attended  these  sessions  tended  to  make  this  body 
a  very  popular  one.  Although  in  essence  a  judicial 
organization,  and  not  legislative,  it  took  upon  itself 
the  duty  of  suggesting  reforms  and  changes,  in  the 
existing  laws,  to  the  governor  and  his  council,  who 
usually  acceded  to  them.  This  assumed  legislative 
power  found  its  strongest  expression  during  the 
governorship  of  I^ord  Lovelace,  NicoU's  successor. 

POPULAR   ASSEMBLY   DISAPPROVED. 

I^ater  in  the  history  of  the  colony,  while  Andros 
w  as  governor,  he  wrote  to  Duke  James,  as  to  the  ad- 
visability of  permitting  the  people  to  choose  a  pop- 
ular assembly,  but  the  Duke  answered  that  redress 
of  grievances  could  be  obtained  by  petition  to  the 
"assizes  where  the  same  persons  are  usually  present 
who,  in  all  probability,  would  be  their  representa- 
tives if  a  different  constitution  were  allowed." 

In  another  letter  to  the  governor,  the  Duke  stated 
that  he  could  not  see  the  use  of  such  assemblies,  but 
advised  him  to  exercise  the  utmost  care  to  the  end 
that  justice  be  humanely  carried  out,  and  the  affairs 
of  the  colony  equitably  administered. 

PERSONNEL  AND  TERMS  OF  COURT. 

The  court  was  composed  of  the  governor,  his 

83 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

council,  and  those  of  the  justices  of  the  peace  who 
wished  to  attend;  it  was  optional  with  these  latter 
to  be  present,  if  not  expressly  ordered  by  the  gover- 
nor. In  its  earher  history,  we  find  that  the  justices 
of  the  peace  from  the  remoter  towns  did  not  attend 
court,  but  at  a  later  period  it  became  more  popular, 
and  having  undertaken  the  functions  of  a  legisla- 
ture, its  sessions  were  attended  by  justices  of  the 
peace  from  as  far  as  Delaware. 

The  cases  before  this  court  were  tried  by  jury. 
Originally  the  jury  was  to  consist  of  only  six,  but 
this  number  was  later  increased  to  twelve.  Contrary 
to  the  practice  at  the  present  time,  juries  were  em- 
panelled even  when  an  appeal  was  heard  by  the 
court. 

As  stated  heretofore,  but  one  session  of  court  was 
to  be  held  each  year.  Authority  was  vested  in  the 
governor,  however,  to  issue  special  commissions, 
wherein  certain  designated  persons  were  to  hold  a 
special  session  of  the  assize,  to  hear  causes;  also 
when  the  governor  and  the  council  were  informed 
of  a  capital  offence  by  the  Court  of  Sessions,  and 
should  the  Court  of  Assize  not  hold  a  meeting 
within  two  months  after  such  information,  a  special 
commission  of  Oj^er  and  Terminer,  usually  ad- 
dressed to  the  mayor  and  aldermen,  was  proclaimed 
for  the  more  speedy  trial  of  the  offender. 

The  records  do  not  disclose  that  the  Courts  of 
Oyer  and  Terminer  were  of  frequent  occurrence  at 
that  time,  but  we  find  two  sessions  of  this  special 

84 


FEES. 

court  recorded  in  the  office  of  the  surrogate  at  New 
York,  in  the  Records  of  Wills,  Volume  I. 

FUNCTIONS  OF  THE  COURT. 

Each  member  of  the  Court  of  Assize  was  entitled 
to  a  vote  at  its  sessions,  and  the  majority  vote  con- 
trolled. I^egislative  measures  were  adopted,  but  it 
could  not  be  positively  stated  that  the  tribunal  had 
exercised  the  powers  of  legislation.  This  was  the 
prerogative  of  the  governor  and  council. 

The  legislative  duties  of  the  court  did  not  inter- 
fere with  the  administration  of  its  judicial  func- 
tions, and  it  continued  until  its  end  to  be  the  high 
court  of  the  province,  especially  for  the  hearing  of 
appeals. 

AMENDMENTS. 

Among  the  amendments  made  by  the  court  to  the 
then  existing  laws,  was  the  limitation  of  the  sessions 
of  the  town  courts,  and  the  convening  of  court  by 
justices  of  the  peace,  once  in  two,  three,  or  four 
weeks,  as  they  saw  fit,  subject  to  a  litigant's  right 
for  additional  sessions  at  his  own  expense. 

FEES. 

The  members  of  the  jury  received  payment  from 
the  time  of  leaving  their  homes  until  their  return; 
a  witness  was  allowed  two  shilKngs  a  day  for  attend- 
ance at  court,  if  voluntary,  or  by  subpoena.     The 

85 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

fees  of  town  courts  were  one-half  of  those  allowed 
to  Courts  of  Sessions,  and  the  fees  of  the  latter  one- 
half  of  those  of  the  Court  of  Assize.  If  the  ques- 
tion at  issue  were  one  of  equity,  the  procedure  of  the 
Court  of  Chancery  was  followed  as  closely  as  pos- 
sible. 

A  justice  of  the  peace  received  besides  his  fees,  an 
annual  salary  of  twenty  pounds,  to  be  paid  from 
the  public  treasury.  (This  salary  provision  was 
later  annulled  and  only  his  fees  were  allowed  him. ) 

The  Courts  of  Sessions  were  held  twice  a  year  and 
the  sessions  of  the  Courts  of  Assize  were  changed 
from  the  last  Thursday  in  September  to  the  first 
Wednesday  in  October.  A  jury  of  twelve  men  was 
empanelled  in  all  cases  heard  before  the  Court  of 
Assize. 

EXTANT  RECORDS. 

There  are  but  two  volumes  extant  of  the  records 
of  the  Court  of  Assize,  one  volume  of  which  may  be 
found  in  the  State  Library  at  Albany,  which  covers 
the  period  from  September  28,  1665,  to  December 
7,  1672;  the  other  volume  is  to  be  found  in  the 
library  of  the  New  York  Historical  Society,  and 
covers  the  period  from  October  6,  1680,  to  October 
6,  1683. 

DUTIES  OF  SECRETARY. 

The  secretary  of  the  province  was  also  the  clerk 
of  the  court,  and  Mathias  Nicolls,  probably  a  rela- 

86 


DUTIES  OF  SECRETARY. 

tive  of  the  first  governor,  acted  in  the  capacity  of 
clerk,  when  the  Court  of  Assize  was  first  erected, 
and  the  earher  records  are  in  his  hand. 

As  secretary  of  the  province  he  had  the  right  to 
sit  in  the  Courts  of  Sessions  in  the  several  ridings, 
and  it  is  recorded  that  he  frequently  took  advantage 
of  this  privilege  in  the  county  of  Queens,  where  he 
owned  considerable  land.  He  later  became  mayor 
of  New  York  City  and  speaker  of  the  first  Assem- 
bly of  1683. 

PUBLIC  RECORD. 

Of  one  of  the  meetings  of  the  Court  of  Assize, 
held  October  6,  1680,  we  have  a  complete  record  in 
which  it  is  stated  that  there  were  thirty  members 
present  at  the  session,  to-wit:  Sir  Edmund  Andros, 
the  governor;  his  council,  five  in  number;  Francis 
Rumbout,  mayor  of  the  City  of  New  York,  and 
five  aldermen;  Richard  Betts,  the  high  sheriff  of 
Yorkshire;  four  justices  of  the  East  Riding,  one  of 
the  North  Riding,  three  of  the  West  Riding;  two 
commissioners  from  Albany;  one  justice  of  Esopus; 
three  justices  of  New  Jersey;  the  chief  justice  of 
Nantucket;  and  two  justices  from  Pemaquid.  A 
complete  list  of  all  that  composed  this  tribunal  is 
given  in  the  record. 

The  Court  of  Assize  was  finally  abolished  by  an 
act  of  the  Assembly,  passed  October  29,  1684,  dur- 
ing Governor  Dongan's  rule. 

87 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 


REMARKS. 

Relative  to  the  Court  of  Assize,  William  Smith, 
the  historian,  claims  in  his  history  of  New  York, 
that  NicoUs,  the  first  governor  of  the  province, 
erected  no  courts  of  justice,  but  took  upon  himself 
the  sole  decision  of  any  disputes.  Complaints  were 
brought  before  him  on  petition  by  the  parties,  to 
whom  one  day's  time  was  given  in  which  to  prepare 
for  hearing.  After  a  summary  hearing  of  the  facts 
involved,  the  governor  would  pronounce  his  verdict. 

His  decisions  were  designated  "edicts,"  and  in 
them  was  a  direction  that  they  be  executed  by  the 
sheriffs  whom  he  had  appointed  for  that  purpose. 

We  are  informed  by  the  same  authority  that  dur- 
ing the  governorship  of  Lovelace,  he  did  not  wholly 
follow  his  predecessor's  example,  but  called  to  his 
assistance  several  of  the  justices  of  the  peace,  to  aid 
him  in  administering  justice,  and  the  entire  tribunal 
was  known  as  the  Court  of  Assize. 

Judge  Charles  P.  Daly,  in  his  history  of  the 
Court  of  Common  Pleas,  takes  issue  with  Smith  on 
this  point,  and  claims  that  there  is  no  authentic 
foundation  for  such  a  statement,  except  that  ap- 
peals from  the  Court  of  Assize  came  directly 
before  the  governor  in  the  form  of  petitions. 

Judge  Daly  assures  us  that  the  records  of  the 
Court  of  Assize,  still  extant,  show  that  the  court 
was  convened  at  New  York  by  NicoUs  on  Sep- 
tember 26,  1665;  it  is  therein  stated  that  the  first 
cause  tried  before  it  was  a  trial  by  jury. 

88 


CHAPTER  V. 


NICOLLS  TO  DONGAN.     (16T3-1683) . 


The  Mayor^s  Court — Wise  Policy  or  Nicolls — 
Procedure  of  Court — Form  of  Judgme:nt — 
Dutch  Custom  of  Nominating  Magistrates 
— ^DuTCH  Re-occupation — Final  Abdication 
—  DuKE^s  Title  —  The  Duke^s  Policy  — 
Changes  Introduced  by  Andros — The  Book 
OF  Laws — Certain  Courts  Re-established  - 
Legal  Reform — New  Charter — The  Early 
Colonial  Bar — Laymen  as  Counsel — Bar- 
ratry AND  Champerty — Rules  and  Regula- 
tions. 

the  mayor^s  court. 

In  passing  over  this  period  of  the  early  adminis- 
tration of  law  in  the  colony  of  New  York,  we  con- 
sider it  essential  to  the  subject  of  this  volume,  to 
bestow  some  attention  on  that  most  important  tri- 
bunal— concededly  the  oldest  in  the  state  of  New 
York — the  Mayor's  Court.  In  commenting  on  the 
Dutch  period,  we  stated  that  during  the  rule  of 
Stuyvesant,  a  Court  of  Burgomasters  and  Schepens 
was  established  in  New  Amsterdam,  in  accordance 

89 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

with  the  usages  prevalent  in  Holland,  and  which 
continued  to  exercise  its  functions  unaltered,  even 
after  the  surrender  to  the  English. 

WISE  POLICY  OF  NICOLLS. 

As  above  noted,  it  was  deemed  impolitic  by 
NicoUs  to  interfere  with  the  Dutch  government 
which  prevailed  in  the  towns.  This  act  of  forbear- 
ance on  the  part  of  NicoUs  was  wise  and  urgent  at 
this  crisis  in  the  affairs  of  the  colony. 

To  inculcate  the  proper  degree  of  submission  and 
loyalty  to  the  new  rulers,  it  was  necessary  to  ap- 
pease rather  than  to  antagonize  the  people  to  be 
governed ;  thus  had  Nicolls  by  the  terms  of  capitu- 
lation guaranteed  to  the  Dutch  colonists  the  contin- 
uance of  their  established  form  of  government. 

Six  months  after  the  promulgation  of  the  Duke's 
laws,  when  the  English  tenure  was  firm  and  secure, 
Nicolls  had  by  proclamation  changed  the  govern- 
ment of  the  city  of  New  York,  from  Dutch  to  Eng- 
lish' customs. 

At  the  same  time,  the  Court  of  Burgomasters  and 
Schepens,  which  convened  at  Harlem,  was  abolished 
by  Nicolls,  and  a  town  court  substituted  for  that 
locality. 

By  an  ordinance  then  issued,  the  property  of  the 
Dutch  who  had  not  as  yet  taken  the  oath  of  allegi- 
ance to  the  English  crown  was  subject  to  confis- 
cation by  the  government. 

90 


FORM  OF  JUDGMENT. 


PROCEDURE  OF  COURT. 


The  new  court  thus  estabhshed  was  to  try  all 
cases  by  jury,  on  Tuesday.  This  was  an  innovation 
on  the  Dutch  custom,  to  which  the  people  did  not 
take  kindly. 

In  deference  to  the  people's  demand,  minor 
cases  were  to  be  referred  to  arbitrators  out  of  court, 
a  practice  which  continued  for  many  years,  and 
which  accounts  for  the  small  number  of  jury  trials 
for  the  first  eighteen  years  of  this  period. 

FORM  OF  JUDGMENT. 

This  was  the  origin  of  the  Mayor's  Court,  and 
under  its  first  environment  and  influences,  but  little 
attention  was  paid  to  the  Duke's  Laws.  The  first 
civil  trial  was  held  on  June  27,  1665,  and  a  jury 
empanelled.  The  cause  before  the  court  for  trial 
was  the  matter  of  Francis  Doughty  vs.  John  Haix- 
man  and  Khelum  Winslow.  The  clerk  of  the  court 
was  Johannes  Nevius,  and  the  judgment  of  the 
court  is  in  his  handwriting  and  imperfect  English, 
as  follows:  "The  Court  doth  order  that  the  partyes 
shall  deliver  in  their  evidence  to  the  following 
juries,  to-wit:  Caleb  Bin^ton,  Isaacy  Bedow, 
Christ  Hoogland,  Balek  de  Haert,  Wilham  Dor- 
nel,  James  Ballaine,  John  Garland,  John  Browne, 
Charles  Bridges,  John  Dawrel,  Thos.  Carvet,  Sam- 
uel Edsal.  The  juries  do  judge  that  the  defendants 
shall  pay  the  plaintiff  so  much  as  shall  appear  by 

91 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

true  accounts  due  unto  him  from  the  defenders,  be- 
sides the  costs  and  damages  of  the  court.  The  Hon- 
orable Court  does  alio  we  off  the  above  sd  judgment 
and  minutes  for  to  view,  examine  and  make  up  the 
accounts  betwixt  the  partyes  from  the  tyme  that  the 
Bark  was  sold  to  Mr.  Thatcher  till  the  time  that  she 
was  returned  again  to  the  said  Douty,  to-wit :  Wil- 
liam Jacob  Backer,  William  Isaacy  Bedloo,  Wil- 
liam Balthazar  De  Haert  and  Mr.  Samuel  Edsal" 
(two  of  the  jurymen  and  two  outsiders). 

DUTCH  CUSTOM  OF  NOMINATING  MAGISTRATES. 

Willett  served  as  mayor  for  three  years,  and  his 
two  successors  were  appointed  by  the  governor.  In 
the  year  1669,  the  Dutch  custom  of  nominating  a 
double  set  of  magistrates  was  revived.  By  this  cus- 
tom the  judges  in  office  nominated  two  persons  for 
each  office,  from  whom  Lovelace  selected,  and  they 
were  to  serve  for  two  years.  In  1670,  the  term  of 
office  was  reduced  to  one  year,  and  the  governor  ap- 
pointed magistrates  annually  until  the  arrival  of 
Governor  Dongan. 

In  the  year  1669,  as  a  signal  mark  of  sanction 
and  respect,  the  Duke  of  York  presented  the  mayor 
of  the  city  with  a  silver  mace,  as  an  insignia  of  of- 
fice, and  to  each  alderman  he  presented  a  gown. 

In  1671,  the  English  custom  of  publicly  pro- 
claiming bans  of  marriage  was  instituted  here,  and 
a  record  of  marriages  ordered  to  be  kept  by  the 
clerk  of  the  Mayor's  Court. 

92 


DUKE  S  TITLE. 


DUTCH  RE-OCCUPATION FINAL  ABDICATION. 

England  had  in  the  meantime  declared  war 
against  Holland,  and  a  Dutch  fleet'  had  been 
despatched  to  New  York  to  recapture  the  province. 
Accordingly  on  August  9,  1673,  a  fleet  in  command 
of  Colve,  the  Dutch  admiral,  entered  the  harbor  and 
recaptured  the  city.  The  name  of  the  province  was 
again  changed  to  New  Netherlands,  and  the  city 
named  "New  Orange." 

A  council  of  war  was  called  by  the  commanders 
of  the  fleet,  and  the  old  Dutch  form  of  government, 
and  the  Court  of  Burgomasters  and  Schepens  re- 
established, with  slight  modificAions;  magistrates 
and  officers  were  named  and  the  Dutch  system  of 
administering  afl*airs  reinstated. 

The  second  Dutch  occupation  of  the  city  was  of 
short  duration ;  a  treaty  had  been  signed  in  Europe, 
whereby  Holland  ceded  the  territory  to  England. 
On  the  31st  of  October,  1674,  Colve  surrendered 
the  city  to  Andros,  the  new  deputy-governor  of  the 
province,  commissioned  by  the  Duke. 

DUKE^S  TITLE. 

The  validity  of  the  Duke  of  York's  title  to  the 
land  had  long  been  questioned;  both  England  and 
Holland  claimed  the  territory.  From  the  begin- 
ning the  people  had  resented  the  arbitrary  powers 
practised  by  the  Duke  as  alleged  proprietor  of  the 
province.    To  forever  allay  all  doubt  on  this  score, 

93 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

the  King  of  England  made  a  new  grant  to  the 
Duke  of  York  in  1674,  with  entirely  the  same  con- 
ditions as  in  the  original  grant  of  1664. 

THE  DUKE^S  POLICY. 

The  Duke  must  have  been  a  man  of  prudence, 
and  highly  sensitive  to  the  feelings  of  his  subjects 
in  America  towards  him  and  his  policies.  In  his  in- 
structions to  Governor  Andros,  he  directed  him  to 
see  that  justice  was  administered  in  the  colony  with 
all  possible  equality,  without  regard  to  private  con- 
cerns or  nationahty.  "It  being  my  desire,"  said 
James,  "that  such  as  live  under  our  government 
may  have  as  muci  satisfaction  as  possible  and  that 
without  the  least  appearance  of  partiality,  they  may 
see  their  just  rights  preserved  to  them  inviolable." 

Andros  was  also  instructed  to  put  into  immediate 
execution  the  laws,  rules,  and  ordinances  established 
under  the  governorships  of  NicoUs  and  Lovelace, 
and  he  was  requested  not  to  vary  them,  except  upon 
urgent  necessity;  nor  was  he  permitted  even  to 
change  them  then,  unless  advised  to  do  so  by  his 
council  and  the  gravest  and  most  experienced  inhab- 
itants of  the  colony. 

It  was  left  to  the  discretion  of  Andros  to  appoint 
officers  and  magistrates  for  the  colony,  but  he  was  to 
select  men  "of  the  most  reputation  for  ability  and 
integrity,  who,  for  those  reasons  might  be  most 
acceptable  to  the  inhabitants." 

It  can  therefore  be  readily  surmised  that  the 

94 


THE  BOOK  OF  LAWS. 

Duke  was  awakening  to  the  demands  of  the  people, 
and  granting  them  certain  rights  without  entirely 
surrendering  his  prerogative  as  proprietor  of  the 
colony. 

CHANGES    INTRODUCED    BY    ANDROS. 

Upon  taking  possession  of  the  city,  Andros  re- 
named it  New  York,  and  ordered  that  the  previous 
English  form  of  government  be  re-established  and 
that  the  city  of  New  York  be  governed  by  a  mayor, 
aldermen,  and  sheriff,  as  originally  established  by 
NicoUs.  The  same  officers  were  continued  in  office 
for  six  months.  Upon  the  appointment  of  succes- 
sors, Mathias  Nicolls  again  took  the  chair  as  mayor 
of  the  city  and  called  a  session  of  the  Mayor's  Court 
for  the  13th  of  November,  1674. 

Andros  had  ordered  that  the  records  of  court 
should  thereafter  be  kept  only  in  English,  and  that 
all  papers  submitted  to  the  courts  should  be  in  the 
same  language;  the  sole  exception  to  this  rule  was 
in  the  case  of  a  poor  person,  who  could  not  afford 
the  fee  for  translating  a  legal  paper. 

THE  BOOK  OF  LAWS. 

The  King  sent  Andros  a  copy  of  the  Duke's 
laws  which  were  in  force  in  the  province  before 
the  governor's  arrival;  they  were  bound  in  one 
volume,  and  with  them  was  an  order  addressed  to 
Andros,  that  he  put  into  execution  all  such  laws  as 
were  not  inconvenient  and  unfeasible;  he  was  also 

95 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

empowered  to  amend  the  laws,  subject  only  to  the 
approval  of  His  Royal  Highness. 

Upon  the  receipt  of  this  order,  Andros  issued  a 
proclamation  to  the  effect  that  the  "  Book  of 
Laws"  would  thereafter  be  in  force  in  the  colony, 
and  that  the  courts  created  by  these  and  the  officers 
chosen  in  conformity  with  them,  be  resumed. 

CERTAIN   COURTS  RE-ESTABLISHED. 

The  town  courts  were  thereby  re-established,  and 
the  Courts  of  Sessions  were  ordered  to  be  revived; 
these  latter  were  to  be  three  in  number,  two  to  be 
held  at  Long  Island  and  one  at  Esopus  or  Kings- 
ton. 

The  fourth  Court  of  Sessions  which  had  been 
established  by  Nicolls  at  Albany,  was  also  revived 
by  Andros,  but  its  name  was  changed  to  the  "May- 
or's Court  "  of  Albany. 

Two  months  after  this  proclamation,  the  Court 
of  Assize  met  on  the  regular  day  assigned  for  its 
sessions,  and  thereafter  continued  to  hold  court 
annually  until  its  dissolution  in  1684.  The  compo- 
sition of  this  court  was  similar  to  that  in  existence 
during  Nicolls'  time,  with  the  addition  that  the 
mayor,  recorder  (a  new  officer  to  assist  the  mayor) , 
and  aldermen,  as  justices  of  the  peace,  were  ex- 
officio  members  of  the  Court  of  Assize. 

LEGAL  REFORM. 

The  establishment  of  the  code  as  the  general  law 
of  the  province  made  no  material  changes  in  the 

96 


NEW  CHARTER. 

practice  of  the  courts  in  this  city,  although  some 
form  of  Enghsh  procedure  was  necessary  because 
of  the  new  ordinance  requiring  the  records  to  be 
kept  in  Enghsh.  The  code  had  least  effect  upon 
the  Mayor's  Court,  since  entire  sympathy  with 
Dutch  customs  was  the  guiding  principle  of  action 
in  this  court.  The  English  form  of  pleading, 
necessitated  by  English  procedure,  was  so  blended 
with  the  Dutch  as  to  be  virtually  indistinguishable. 
It  was  in  1682,  upon  the  arrival  of  two  Enghsh 
lawyers,  that  special  forms  of  pleading  came  into 
practice;  in  fact,  the  English  forms  of  procedure 
were  not  brought  into  general  use  until  the  time  of 
Chief  Justice  Mompesson,  about  the  years  1704  to 
1718. 

NEW  CHARTER. 

Nicolls  and  five  aldermen  continued  to  hold  office 
until  October,  1675,  when  Andros  issued  a  new 
commission  and  granted  a  new  charter  to  the  city  of 
New  York,  which  established  a  corporate  govern- 
ment for  the  city  and  increased  the  number  of  alder- 
men to  six.  Full  power  and  authority  were 
conferred  upon  the  corporation  to  maintain  courts, 
administer  justice,  and  govern  the  inhabitants  ac- 
cording to  the  laws  of  the  province,  and  privileges 
and  practices  of  the  city.  The  mayor  and  any  four 
of  the  aldermen  were  authorized  to  sit  as  a  Court 
of  Sessions  in  the  city,  but  no  separate  criminal  tri- 
bunal was  erected ;  the  mayor  and  the  aldermen  con- 

97 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

tinued,  as  before,  to  exercise  their  three-fold  func- 
tions of  municipal,  criminal,  and  civil  jurisdiction 
at  the  regular  sessions,  which  were  held  once  every 
three  weeks. 

While  trial  by  jury  was  the  rule,  this  procedure 
was  not  strictly  adhered  to;  the  Dutch  custom  of 
arbitration  continued  and  was  general^  practiced 
until  English  lawyers  multiplied  in  the  colony, 
when  the  system  of  special  pleading  grew  so  subtle 
and  refined  that  arbitrators  were  no  longer  resorted 
to,  except  in  cases  of  accounts,  which  were  usually 
referred  to  three  persons,  at  first  designated  arbi- 
trators, and  later  referees;  all  cases  of  accounts 
continued  to  be  so  referred  until  1772,  when  the 
practice  was  permanently  fixed  and  regulated  by 
statute  of  the  Assembly. 

THE  EARLY  COLONIAL  BAR. 

Let  us  pause  at  this  part  of  our  work  to  examine 
the  characteristics  and  methods  of  the  lawyers  of 
the  early  colonial  period.  Among  the  Dutch,  law- 
yers as  a  class  or  profession  were  almost  unknown; 
litigants  were  accustomed  to  appear  and  plead  in 
person  before  the  court  or  arbitrators. 

Attorneys,  however,  are  mentioned  in  the  records 
of  the  Court  of  Assize ;  the  appearance  of  one  John 
Rider,  as  counsel  for  plaintiff,  is  noted  in  a  case 
heard  before  that  tribunal,  and  similar  mention  is 
made  of  others,  but  none  of  them  seem  to  have  been 
especially  trained  to  the  law.     No  cognizance  of 

98 


BARRATRY  AND  CHAMPERTY. 

lawyers  was  taken  by  the  Duke's  Laws,  and  no  pro- 
visions looking  to  their  qualifications  expressed. 

LAYMEN  AS   COUNSEL. 

Neither  the  early  magistrates  nor  those  who  occa- 
sionalty  acted  in  behalf  of  parties  to  a  trial,  were 
lawyers,  in  the  primary  signification  of  that  term. 
They  were  generally  merchants  and  mechanics  who 
had  achieved  among  their  friends  and  neighbors 
a  reputation  for  business  sagacity,  capable  address, 
and  a  knowledge  of  the  common  law  of  England. 

Lawyers  seem  to  have  been  the  objects  of  pop- 
ular distrust  and  dislike  in  most  of  the  colonies; 
this  feeling  was  less  pronounced  in  New  York, 
which  had  so  long  suffered  under  disorderly  and 
harsh  administrators. 

BARRATRY  AND  CHAMPERTY. 

The  Nicolls  Code  contained  the  following  provi- 
sion against  the  litigious  propensities  and  multi- 
plicities of  law  suits — "  vexing  others  with  unjust, 
frequent  and  endless  law  suits  "  was  made  punish- 
able by  fine  and  imprisonment;  besides  "  it  shall  be 
in  the  power  oi  the  court  to  reject  his  cause." 

In  addition  to  this  i^enalty  for  common  barratry 
was  one  disqualifying  certain  officers  from  acting 
as  attorneys  in  any  case;  "no  high  Sheriff e,  under 
Sheriffe,  high  Constable,  petty  Constable,  or 
Clarke  of  the  Court  shall  be  permitted  to  plead  as 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

attorney  in  any  person's  behalf  e  in  the  Court  where 
he  officiates." 

RULES  AND  REGULATIONS. 

It  was  in  the  power  of  the  court  to  reject  any 
cause  considered  to  be  merely  frivolous  and  to  fine 
or  imprison  the  offender. 

Justices  of  the  peace,  no  doubt  on  account  of 
their  privilege  of  exercising  appellate  jurisdiction 
in  the  Court  of  Assizes,  were  also  inhibited  from 
engaging  as  counsel  in  any  trial. 

A  poor  person,  illiterate  and  incapable  of  plead- 
ing his  own  case,  might,  upon  request,  be  assigned 
counsel  to  protect  his  interests.  In  such  case  any 
of  the  officers  above  disqualified  might  be  appoint- 
ed, for  the  party,  by  the  court. 


100 


CHAPTER   VI 


PROGRESS  OF  LAW  UNDER  GOV. 
DONGAN. 


Appointment  of  Dongan — Popular  Assembly 
— Terms  of  Courts  of  Sessions — Oyer  and 
Terminer — Court  of  Chancery — Events 
during  dongan^s  administration aboli- 
TION OF  THE  Assembly — New  Commission — 
Court  of  Judicature — Extended  Jurisdic- 
tion— DoNGAN^s  Report — Dongan  Charter 
— Two-fold  Functions  of  Mayor^s  Court — 
Minor  Courts — Recorder's  Court — ^Discon- 
tinuance OF  Oyer  and  Terminer — Change  of 
Dynasty — Two  Parties. 

appointment  of  dongan. 

In  the  year  1683,  Colonel  Thomas  Dongan  had 
been  appointed  by  the  Duke  as  his  deputy  for  New 
York.  In  August  of  that  year  the  former  entered 
upon  the  discharge  of  his  official  duties.  Acting  on 
instructions  from  his  superiors  he  had  issued  writs 
to  the  officers  of  the  colony  for  the  election  of  "  a 
general  assembly  of  all  the  freeholders  by  the  per- 
sons whom  they  chose  to  represent  them."  The 
membership  was  limited  to  the  number  of  eighteen, 

101 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

and  the  Duke's  ratification  and  sanction  would  be 
given  to  such  laws  "  as  shall  appear  to  me  to  be  for 
the  manifest  good  of  the  country  in  general  and  not 
prejudicial  to  me." 

POPULAR  ASSEMBLY. 

It  was  through  the  good  offices  of  that  excellent 
law-giver,  William  Penn,  the  proprietor  of  Penn- 
sylvania, that  the  Duke  had  been  counseled  to  grant 
a  popular  assembly  for  the  colony  of  New  York,  a 
concession  dear  to  the  English  instinct  for  repre- 
sentative government. 

The  power  to  create  courts,  which  had  been  be- 
stowed on  the  governor  and  council,  had  remained 
in  abeyance,  or  been  left  entirely  to  the  Assembly. 
This  new  branch  of  government  first  met  on  Octo- 
ber 30,  1683,  and  after  passing  an  act  entitled  the 
"  Charter  of  Liberties,"  enacted  "  An  Act  to  Settle 
Courts  of  Justice."  This  act  created  four  distinct 
tribunals — a  Petty  Court  in  every  town  for  the  trial 
of  small  causes;  a  Court  of  Sessions  for  each 
county ;  a  Court  of  Oyer  and  Terminer,  or  General 
Gaol  Delivery,  and  a  Court  of  Chancery  for  the 
province  at  large.  The  town  court  was  held  on  the 
first  Wednesday  of  every  month,  by  three  commis- 
sioners appointed  by  the  governor;  its  jurisdiction 
extended  to  actions  of  debt  or  trespass,  wherein  the 
amount  involved  did  not  exceed  forty  shillings.  A 
trial  by  jury  of  the  issues  joined  could  be  had  only 
at  the  special  request  of  either  side  upon  payment 
of  the  proper  cost  and  charge. 

102 


OYER  AND  TERMINER. 


TERMS  OF  COURT  OF  SESSIONS. 

The  Court  of  Sessions  was  to  be  held  by  the  jus- 
tices of  the  peace  of  each  county,  or  three  of  them, 
at  least  twice  a  year,  in  each  county,  except  that  in 
the  city  of  New  York  it  was  to  be  held  four  times  a 
year,  and  in  Albany  three  times  a  year. 

The  sessions  for  the  city  of  New  York  were  to 
be  held  on  the  first  Tuesdays  in  February,  May, 
August,  and  November,  and  all  trials  were  to  be  by 

In  the  city  of  New  York  sessions  were  to  be  held 
by  the  mayor  and  aldermen ;  like  the  former  Court 
of  Sessions,  it  had  both  criminal  and  civil  jurisdic- 
tion, without  limitations  as  to  amount,  and  all  cases 
were  triable  by  jury.  Other  officers  of  court  were 
a  clerk,  known  as  the  "  Clerk  of  Sessions,"  and  a 
marshall  and  crier. 

OYER  AND  TERMINER. 

The  Coiu't  of  Oyer  and  Terminer  was  composed 
of  two  justices  commissioned  by  the  governor,  who 
were  to  go  the  circuit  of  each  county  twice  a  year, 
assisted  by  four  justices  of  the  peace  from  each 
county  where  they  held  court;  in  New  York  city 
the  mayor,  recorder,  and  four  of  the  aldermen  were 
to  sit  with  the  judges  of  Oyer  and  Terminer.  The 
Court  of  Oyer  and  Terminer  had  unlimited  juris- 
diction of  criminal  and  civil  cases,  and  generally 
acted  as  an  appellate  court. 

103 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 


COURT  OF  CHANCERY. 

The  Court  of  Chancery  was  composed  of  the  gov- 
ernor and  council;  but  the  governor  reserved  the 
power  to  appoint  a  chancellor  in  his  stead.  It  had 
unlimited  jurisdiction  over  all  matters  in  equity, 
and  was  the  highest  tribunal  of  justice  within  the 
colony. 

Immediately  after  the  passage  of  this  act  by  the 
Assembly,  Dongan  appointed  as  judges  of  the 
Court  of  Oyer  and  Terminer,  Mathias  Nicolls  (be- 
fore mentioned  as  mayor  of  the  city)  and  Thomas 
Palmer,  both  of  the  legal  profession.  Commission- 
ers were  also  appointed  for  the  several  town  courts ; 
and  more  justices  of  the  peace  and  sheriffs  were 
commissioned  to  act  in  the  several  localities. 

EVENTS  DURING  DONGAN^S  ADMINISTRATION. 

In  the  year  following,  1684,  the  Court  of  Assize 
was  abolished  by  act  of  Assembly,  and  the  same 
year  Thomas  Rudyard,  a  London  lawyer  who  had 
been  lieutenant-governor  of  New  Jersey,  was  ap- 
pointed by  Governor  Dongan  as  the  first  attorney- 
general  of  New  York. 

The  office  of  surrogate  or  probate  judge  was  ad- 
ministered by  the  governor  in  person,  who  presided 
as  such  over  the  entire  province  and  though  schooled 
in  the  profession  of  arms  and  not  of  law,  seems  to 
have  given  general  satisfaction. 

The  governor  and  council  constituted  a  Court  of 

104 


EVENTS  DURING  DONGAN  S  ADMINISTRATION. 

Exchequer,  which  was  to  meet  on  the  first  Monday 
of  each  month. ' 

Upon  Dongan's  arrival  in  New  York,  he,  dis- 
missed all  the  old  magistrates  and  appointed  new 
ones.  The  November  following  his  arrival,  the 
mayor  and  aldermen  of  the  city  presented  a  peti- 
tion to  the  governor,  asking  that  the  franchises  and 
privileges  of  the  city  and  its  officers  be  confirmed. 
In  this  petition  it  was  asked  that  the  city  be  divided 
into  six  wards,  and  the  freeholders  of  each  ward  be 
empowered  to  elect  an  alderman  and  appoint  a 
common  councilman,  with  other  local  officers,  and 
that  a  recorder  be  appointed  by  the  governor  to 
assist  the  mayor  in  his  duties  (3  Colonial  Docu- 
ments 339).  On  December  14,  1683,  James  Gra- 
ham was  accordingly  seated  "  on  the  right  hand  of 
the  mayor  "  as  New  York's  first  recorder,  a  position 
which  he  filled,  with  but  a  short  intermission,  for  a 
period  of  seventeen  years. 

The  day  following  Graham's  appointment,  the 
new  magistrates  went  in  a  body  to  the  Fort,  and 
after  being  sworn  into  office  before  the  governor 
and  council,  returned  and  opened  court,  with  the 
recorder  at  the  mayor's  right  hand. 

The  general  assembly  which  was  convened  by 
Dongan  had  exercised  their  legislative  powers  in 
the  several  sessions  of  the  Assembly,  by  enacting 
laws  which  were  deemed  wdse  and  salutary  by  the 
legislators,  but  were  never  ratified. 


105 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 


ABOLITION  OF  THE  ASSEMBLY. 

The  Assembly  met  again  on  November  1,  1685, 
but  the  governor,  by  proclamation,  dissolved  it  on 
January  30th,  1686.  The  reason  for  this  step  was 
that  the  Duke  of  York  had,  in  the  meantime,  as- 
cended the  throne  of  England.  An  entirely  new 
aspect  was  now  put  upon  the  relations  which  he 
bore  to  the  colony  of  New  York.  Previous  to  this 
important  step  it  had  been  held  by  him  as  a  private 
citizen  of  the  kingdom,  but  was  now  merged  with 
the  personality  of  the  Duke  in  that  of  a  royal  title. 
An  assembly  was  no  longer  necessary,  and  the 
King's  word  was  to  constitute  the  law  of  the  land. 

The  passage  of  the  Charter  of  Liberties,  so  re- 
pugnant to  the  imperious  nature  of  James,  had 
determined  his  course.  He  had  resolved  against  all 
representative  assemblies  for  the  future,  and  ac- 
cordingly issued  a  new  commission  to  Dongan,  in 
1686,  which  concentrated  all  legislative  power  into 
the  hands  of  the  governor  and  the  council,  subject, 
however,  to  the  royal  approval  of  any  laws,  within 
three  months  after  their  passage. 

NEAV  COMMISSION. 

By  the  new  commission  Dongan  was  especially 
empowered  to  erect  courts  of  law  and  equity,  and 
given  discretionary  power  in  the  appointment  of 
judges  and  other  officers  for  the  colony.  The 
King's  instructions  to  Dongan  on  this  score  were 

106 


EXTENDED  JURISDICTION. 

that  the  latter  appoint  "  men  of  no  mean  abihty  and 
not  necessitous  people  or  much  in  debt,  and  not  to 
displace  judges,  justices  or  sheriffs,  without  good 
and  sufficient  cause  to  be  signified  to  the  King,  and 
to  prevent  their  arbitrary  removal,  and  that  no  time 
should  be  expressed  in  the  commission  for  the  dura- 
tion of  their  offices." 

COURT  OF  JUDICATURE. 

The  act  to  settle  courts  of  justice  having  been 
approved  by  the  King,  the  courts  that  were  estab- 
hshed  by  it  were  continued  by  Dongan;  the  only 
change  he  made  was  the  creation  of  what  he  called 
a  "  Court  of  Judicature,"  but  which  was  in  fact  a 
Court  of  Exchequer.  Great  difficulty  had  been  ex- 
perienced in  enforcing  payment  of  taxes  and  rev- 
enue, because  of  the  imperfect  organization  of 
courts  distant  from  New  York.  To  expedite  this 
work  he  had  instituted  this  court,  which  was  held 
by  the  governor  and  his  council  on  the  first  JNIonday 
of  every  month;  in  it  were  determined  all  suits  or 
matters  between  the  King  and  the  inhabitants,  con- 
cerning lands,  titles,  rents,  profits,  and  revenues. 
A  Court  of  Chancery  was  also  established  by  act  of 
Assembly,  to  be  held  on  the  first  Thursday  of 
every  second  month  from  February  16th,  1683, 
when  the  first  meeting  was  held. 

EXTENDED  JURISDICTION. 

Further  articles  of  law  reform,  under  a  commis- 
sion sent  out  to  Dongan,  enlarged  the  appellate 

107 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

divisions  of  the  courts.  Appeals  were  allowed  in 
cases  of  error,  to  the  governor  and  council,  where 
the  amount  involved  exceeded  one  hundred  pounds ; 
in  case  the  sum  in  litigation  was  in  excess  of  three 
hundred  pounds,  the  appeal  could  be  taken  to  the 
King  and  privy  council. 

The  judiciary  powers  of  the  governor  and 
council  were  therefore  threefold.  They  had  gen- 
eral jurisdiction  in  all  matters  of  equity,  sat  as  a 
Court  of  Exchequer,  and  constituted  the  final  court 
of  appeals  in  the  province. 

At  this  period  a  Mayor's  Court  was  held  at  Al- 
bany every  fortnight,  from  which,  as  in  the  Mayor's 
Court  in  New  York,  appeals  might  be  taken  from 
judgments  in  excess  of  twenty  pounds. 

The  Court  of  Oyer  and  Terminer  was  summoned 
to  sit  by  special  commission,  issued  when  occasion 
demanded.  The  particular  judge  and  justices  of 
the  peace  who  were  to  assist  him  were  named  in  the 
writ.  At  the  close  of  a  circuit  or  term,  the  written 
pleadings  in  each  case,  with  all  orders,  records  of 
judgrnent,  and  a  complete  record  of  the  minutes, 
was  attached  to  the  commission,  enclosed  to  the 
secretary  of  the  province,  and  filed  as  an  official 
record. 

DONGAN^S  REPORT. 

In  reporting  to  the  King  and  privy  council,  on 
the  affairs  of  the  province,  Dongan  made  honorable 
mention  of  the  two  regular  judges  of  the  Court  of 
Oyer  and  Terminer,  NicoUs  and  Palmer.  He  com- 

108 


DONGAN  S  REPORT. 

mends  these  gentlemen  in  the  following  language: 
"Their  methods  have  been  by  arbitration  and  such 
other  mild  management,  that  where  there  were  ten 
suits  formerly,  there  is  but  one  now." 

DONGAN  CHARTER. 

During  his  first  year  in  office,  Dongan  granted 
a  charter  to  New  York,  which  is  known  as  the 
"Dongan  Charter."  By  the  provisions  of  this 
charter,  the  inhabitants  of  each  ward  in  the  city 
were  to  elect,  annually,  one  alderman,  one  assistant 
alderman,  and  one  constable;  the  mayor,  recorder, 
and  sheriff  were  to  be  appointed  by  the  governor, 
and  the  high  constable  by  the  mayor.  The  mayor, 
recorder,  and  any  three  of  the  aldermen,  with  any 
three  of  the  assistants,  were  created  a  common 
council,  which  in  convention  was  authorized  to  pass 
laws  and  ordinances  for  the  government  of  the  com- 
munity. The  mayor,  recorder,  and  aldermen,  or 
any  three  of  them,  of  whom  the  mayor  or  recorder 
must  be  one,  were  authorized  to  hold  within  the  city, 
a  Court  of  Common  Pleas,  on  every  Tuesday,  for 
the  trial  of  all  debts,  trespasses,  ejectment,  or  other 
personal  action,  according  to  the  rules  of  the  com- 
mon law  and  the  acts  of  the  General  Assembly  of 
the  province;  and  it  was  further  provided  that  the 
mayor  and  recorder,  or  three  or  more  of  the  alder- 
men (not  exceeding  five)  should  be  justices  of  the 
peace,  and  any  three,  of  whom  the  recorder  or  the 
mayor  should  be  one,  were  empowered  to  hear  and 

109 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

determine  all  manner  of  petty  larcenies,  riots,  routs, 
oppressions,  extortions,  and  other  trespasses  and 
offences  in  the  city. 

TWOFOLD  FUNCTIONS  OF  MAYOR^S  COURT. 

Prior  to  the  adoption  of  this  charter  for  the  regu- 
lation of  municipal  affairs,  the  Mayor's  Court  had 
united  in  itself  the  twofold  functions  of  a  city  coun- 
cil and  a  court  of  justice.  All  matters  of  a  legisla- 
tive and  judicial  nature  came  before  the  court  indis- 
criminately ;  priority  was  given  to  the  regular  busi- 
ness of  court,  after  which  the  municipal  affairs  were 
taken  up. 

By  the  charter  a  distinction  was  made  between 
the  legislative  and  judicial  functions  of  the  mayor, 
recorder,  and  aldermen.  A  further  distinction  made 
their  functions  as  criminal  magistrates  separate  and 
distinct  from  those  which  they  exercised  as  judges 
in  civil  cases.  Three  tribunals  were  organized,  com- 
posed of  the  same  officers,  but  each  with  different 
duties;  these  were  the  Common  Council,  the  May- 
or's Court  (Court  of  Common  Pleas),  and  the 
Sesssions. 

MINOR  COURTS. 

In  the  Common  Council  was  vested  exclusive 
power  to  pass  laws  and  ordinances  for  the  govern- 
ment of  the  city ;  the  Mayor's  Court  dealt  with  only 
civil  business;  the  "Quarter  Sessions"  was  the  crim- 
inal side  of  the  court.    The  court  of  "Quarter  Ses- 

110 


DISCONTINUANCE  OF  OYER  AND  TERMINER. 

sions,"  after  1688  known  as  the  "Court  of 
Sessions,"  was  organized  under  the  provisions  of 
the  charter  authorizing  the  mayor,  recorder,  and 
aldermen  to  try  criminal  offences. 

RECORDER'S  COURT. 

As  previously  stated,  a  Court  of  Sessions  was 
established  for  the  cit}^  by  an  act  to  settle  courts 
of  justice,  which  like  similar  courts  in  other  coun- 
ties, had  both  civil  and  criminal  jurisdiction. 

It  was  in  view  of  the  establishment  of  this  addi- 
tional court,  and  to  secure  a  permanent  tenure  of 
office  for  the  magistrates  appointed,  that  the  mayor 
and  aldermen  applied  to  Dongan  for  the  appoint- 
ment of  a  recorder.  The  first  recorder,  as  we  have 
seen,  was  James  Graham.  The  Recorder's  Court 
sat  but  once  every  three  months,  while  the  Mayor's 
Court  sat  every  two  or  three  weeks. 

DISCONTINUANCE  OF  OYER  AND  TERMINER. 

The  circuit  of  Oyer  and  Terminer  was  held  twice 
a  year  in  the  city,  and  as  the  Mayor's  Court  had  the 
same  jurisdiction  as  the  Court  of  Sessions,  with  the 
advantage  of  sitting  more  frequently,  there  was 
comparatively  little  for  the  former  to  do.  It  was 
not  embraced  in  the  general  provisions  of  the  char- 
ter, nor  yet  was  it  repealed ;  the  act  creating  it  had 
been  passed  by  the  General  Assembly,  and  had  been 
signed  before  the  charter  was  granted,  and  ap- 

111 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

proved  by  the  king;  it  was  not,  therefore,  in  Don- 
gan's  power  to  repeal  the  law.  But  by  general 
acquiescence,  this  court  seems  to  have  been  discon- 
tinued, and  the  Court  of  Sessions,  as  a  court  of 
exclusive  criminal  jurisdiction,  substituted  in  its 
stead. 

CHANGE  OF  DYNASTY. 

In  1688,  Dongan,  who  was  the  most  independent 
and  liberal-minded  of  our  colonial  governors,  was 
recalled,  and  Lieutenant-Governor  Nicholson  left 
in  charge. 

The  Enghsh  revolution  of  1688  had  brought  to 
the  throne  William  of  Orange,  a  monarch  indiffer- 
ent to  the  needs  of  his  subjects  in  America,  and 
chiefly  engrossed  in  continental  affairs. 

The  government  of  the  province  at  this  crisis  was 
forcibly  undertaken  by  one  Leisler,  who  discharged 
this  important  duty  for  twenty-one  months,  or  until 
the  arrival  of  Colonel  Henry  Sloughter  in  1691, 
the  new  governor  appointed  by  King  William. 

During  Leisler's  administration,  he  issued  several 
commissions  for  Courts  of  Oyer  and  Terminer  at 
New  York  and  on  Long  Island,  appointed  Peter 
De  Lanoy  a  member  of  his  council,  and  the  mayor 
of  the  city  as  chief  judge  of  Oyer  and  Terminer.  It 
was  Leisler  who  first  called  a  Colonial  Congress,  in 
1690,  composed  of  representatives  from  the  col- 
onies. 


112 


TWO  PARTIES. 


TWO  PARTIES. 


The  adherents  of  Wilham  and  Mary,  King  and 
Queen  of  England,  were  divided  into  two  parties, 
the  Dutch  and  the  French,  headed  by  Leisler,  and 
the  Enghsh  Episcopahans,  known  as  the  anti-Pres- 
byterian party,  whih  included  all  who  had  been  in 
power  under  Dongan  and  Nicolls.  The  latter  hav- 
ing secured  the  confidence  of  Sloughter,  Leisler  and 
Milbourne  (his  son-in-law  and  chief  adviser)  were 
arrested  and  brought  to  trial  before  a  special  court 
of  Oyer  and  Terminer.  Leisler  refused  to  plead, 
and  claimed  as  of  right,  an  appeal  to  the  king, 
which  Sloughter,  now  governor,  refused  to  concede. 
Both  Leisler  and  Milbourne  were  convicted  and 
executed. 


113 


CHAPTER  VII 


GOVERNOR  SLOUGHTER. 


General  Assembly — Results  Accomplished — 
Courts  of  Judicature — Court  Record — Ad- 
ditional Powers  —  Goaternmental  Supervi- 
sion OF  Lawyers  —  Appellate  Procedure  — 
Martial  Court. 

general  assembly. 

Colonel  Henry  Sloughter,  the  newly  appointed 
governor,  arrived  on  the  scene  of  his  new  labors  on 
March  19th,  1691,  under  a  commission  much  simi- 
lar to  that  of  Colonel  Dongan.  Under  the  powers 
conferred  by  virtue  of  his  appointment,  he  issued 
a  call  for  a  General  Assembly  of  freeholders,  which 
accordingly  met  on  April  9th,  1691.  The  law- 
making power  was  vested  in  the  governor  acting  in 
conjunction  with  the  council  and  a  majority  of  the 
Assembly.  All  laws  enacted  were  subject  to  veto 
by  the  King,  and  became  operative  only  after  the 
royal  sanction  and  ratification.  Legal  effect  was 
given  to  legislation  by  a  clause  which  we  quote: 
"Be  it  enacted  by  His  Excellency  the  Governor,  by 
and  with  the  consent  of  the  Council  and  Assembly, 
and  by  the  authority  of  the  same";  in  itself  an 

115 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

epitome  of  the  legal  elements  requisite  to  give  con- 
stitutionality. 

RESULTS  ACCOMPLISHED. 

This  assembly  abolished  all  existing  courts,  on 
the  ground  that  they  had  never  received  royal  rati- 
fication, and  took  measures  for  the  judicial  re-or- 
ganization of  the  province.  The  act  "To  settle 
Courts  of  Judicature"  passed  by  this  assembly, 
changed  the  town  courts  into  Courts  of  Justices  of 
the  Peace,  created  a  Court  of  Common  Pleas  for 
each  county,  except  New  York  and  Albany,  to  be 
held  by  a  judge  commissioned  by  the  governor,  and 
Courts  of  General  Sessions  of  the  Peace  for  each 
county,  making  the  same  provisions  for  a  Court  of 
Chancery  as  under  the  act  of  1683. 

COURTS  OF  JUDICATURE. 

The  most  important  enactment  of  the  Assembly 
of  1691,  concerned  the  Judicature,  to  wit:  "An  act 
for  establishing  Courts  of  Judicature." 

It  created  a  Supreme  Court  to  sit  in  New  York, 
composed  of  a  chief -justice,  a  second  justice,  and 
three  associate  justices,  commissioned  under  royal 
warrant. 

COURT  RECORD. 

The  following  record  of  courts  and  their  jurisdic- 
tion was  preserved  by  Matthew  Clarkson,  secretary 
of  the  province,  entitled,  "An  Account  of  all  Estab- 
lishments of  Jurisdiction  within  the  province." 

116 


COURT  RECORD. 

"Single  Justice.  Every  Justice  of  the  Peace 
hath  power  to  determine  any  suite  or  controversy 
to  the  value  of  forty  shillings. 

"Quarter  Sessions.  The  Justices  of  the  Peace 
in  quarter  sessions  have  all  such  powers  and  author- 
ities as  are  granted  to  a  Commission  of  ye  Peace  in 
England. 

"County  Court.  The  County  Court  or  Conmion 
Pleas  hath  cognizance  of  Civil  Accons  to  any  value 
excepting  what  concerns  the  title  to  land  and  noe 
accon  can  be  removed  from  this  Court  if  the  dam- 
age be  under  twenty  pounds. 

"Mayor  and  Aldermen.  The  Court  of  Mayor 
and  Aldermen  hath  the  same  power  with  the  Coun- 
ty Courts. 

"Supreme  Court.  The  Supreme  Court  hath  the 
powers  of  Kings  Bench,  Common  Pleas  and  Ex- 
chequer in  England  and  no  accon  can  be  removed 
from  this  Court  under  one  hundred  pounds. 

"Chancery.  The  governor  and  council  are  a 
Court  of  Chancery,  and  have  the  powers  of  the 
chancery  in  England,  from  whose  decree  nothing 
can  be  removed  under  three  hundred  pounds. 

"Prerogative  Court.  The  Governor  discharges 
the  place  of  Ordinary  in  granting  administrations 
and  proveing  Wills  and  The  Secretary  is  Register. 
The  governor  is  about  to  appoint  delegates  in  the 
remoter  parts  of  the  government,  with  Supervision 
for  looking  after  intestates  estates  and  orphans. 

"Court  Martiall.    The  Governor  hath  established 

117 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

a  Court  JNIartialU  at  Albany  whereof  Major  Rich- 
ard Ingoldesby  is  President  and  Robert  Livingston 
Judge  Advocate,  who  with  the  other  commissioned 
Captains  at  Albany  have  power  to  exercise  Martiall 
Law  being  a  frontier  garrison  and  in  actual  warr. 

"Admiralty.  Their  Majesties  reserve  the  ap- 
pointment of  a  Judge,  Register  and  Marshall." 

We  give  the  act  creating  the  Supreme  Court,  in 
full,  in  another  chapter. 

ADDITIONAL  POWERS. 

The  acts  of  the  Assembly  of  1691  also  provided 
for  the  establishment  of  a  Court  of  Mayor  and 
Aldermen  for  the  city  of  New  York,  conferring 
on  this  court  like  powers,  jurisdiction,  and  authority 
with  the  county  Courts  of  Common  Pleas;  provi- 
sion was  likewise  made  that  the  governor  should 
discharge  the  office  of  ordinary,  in  granting  admin- 
istration papers  or  letters  testamentary,  and  enter- 
taining the  probate  of  wills.  To  himself  the  gover- 
nor reserved  the  appointment  of  representatives  in 
the  remoter  sections  of  governments,  to  whom  was 
committed  the  supervision  and  guardianship  of 
orphan  and  intestate  estates. 

GOVERNMENTAL  SUPERVISION  OF  LAWYERS. 

On  November  11th,  1692,  the  assembly  re- 
enacted  practically  all  the  laws  relative  to  the  estab- 
lishment of  courts  that  it  had  passed  in  the  preced- 

118 


GOVERNMENTAL  SUPERVISION  OF  LAWYERS. 

ing  year.  On  October  22nd,  1695,  an  act  of 
assembly  was  passed  regulating  the  employment  of 
counsel.  This  is  the  first  legislative  cognizance 
taken  of  the  legal  profession;  by  a  regulation 
therein  contained,  the  number  of  attorneys  to  be 
retained  by  either  party  to  a  suit  at  law  in  any  of 
the  courts  within  the  province  was  limited  to  not 
more  than  two. 

APPELLATE  PROCEDURE. 

By  the  original  act,  in  the  section  that  concerned 
appeals,  it  was  prescribed  that  appeals  might  be 
taken  to  the  governor  and  council,  from  the  Courts 
of  Mayor  and  Aldermen  and  from  the  Courts  of 
Common  Pleas,  from  any  judgment  above  the 
value  of  one  hundred  pounds.  From  the  governor 
and  council,  an  appeal  might  be  taken  to  the  King 
and  privy  council  from  any  decree  or  judgment 
above  the  value  of  three  hundred  pounds. 

Under  this  provision,  as  a  condition  precedent  to 
appeal,  a  party  appellant  was  required  to  pay  all 
existing  costs  of  the  judgment  or  decree,  and  fur- 
nish security  in  double  the  amount  of  the  judgment, 
to  secure  judgment  and  costs  on  appeal,  should  the 
final  decision  be  adverse  to  appellant. 

It  was  provided  in  addition,  that  the  party  ap- 
pealing should  prosecute  and  make  return  of  the 
appeal  within  twelve  months  after  he  requested  the 
appeal. 

An  act  was  passed  on  October  24th,  1695,  con- 

119 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

f  erring  upon  the  Court  of  Common  Pleas,  the  right 
to  try  any  action  relating  to  real  property,  and  from 
the  judgment  rendered,  appeal  lay  to  the  Supreme 
Court. 

MARTIAL  COURT. 

In  the  same  year  the  governor  established  a  Mar- 
tial Court  at  Albany,  with  Major  Richard  Ingold- 
esby  as  president,  and  Robert  Livingston  as  judge 
advocate,  who,  with  the  other  commissioned  captains 
at  Albany,  had  power  to  exercise  martial  law  in  the 
city  of  Albany.  The  reason  for  its  establishment, 
as  elsewhere  stated,  was  that  Albany  was  a  frontier 
garrison,  and  at  that  time  engaged  in  actual  war. 

Having  thus  enumerated  the  several  acts  relative 
to  the  courts  immediately  after  1691,  we  will  now 
proceed  to  give  a  connected  history  of  the  several 
courts  established  by  the  Constitution  of  1691,  up 
to  the  next  change  in  the  judiciary  in  1777. 


120 


CHAPTER  VIII. 


THE  SUPREME  COURT. 


Creation  of  the  Court — Original  Act  of  Es- 
tablishment— Foundation — Body  of  Nine — 
Court  of  Assize  —  Courts  of  Judicature  — 
Courts  of  Oyer  and  Terminer — Circuit 
Courts — Special  Terms  of  Court — Amended 
Procedure — Additional  Mention — Salary — 
Chief-Justice  Dudley  —  Successive  Chief- 
Justices  —  Chief- Justice  Attwood  —  Lord 
CoRNBURY^s  Letter — Different  Chief- Jus- 
tices —  Tenure  of  Office  —  Instability  of 
Office — Innovation  Introduced  by  Gover- 
nor Clinton — Constitutionality  of  Office 
OF  Judge — Office  Rendered  Unattractive — 
Acquiescence  in  Court  Custom — Chief-Jus- 
tice Delancey  —  Colonial  Aristocracy  — 
Characteristics  of  the  Bench — Judges^  Sal- 
aries— Statutory  Terms  of  Court — Terms  of 
Court  Changed — Additional  Powers — Fees 
— Jurisdictional  Limitations — Discourage- 
ment OF  Litigation — Remedial  Legislation 
— Debtors — Insolvent  Debtor^s  Act — Act 
Amended — Constitutionality  of  King's  Pre- 

ROGATIA^. 

121 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 


CREATION  OF  THE  COURT. 

The  proper  basis  and  foundation  for  the  present 
Supreme  Court  of  the  State  of  New  York,  as  de- 
clared in  the  Code  of  Civil  Procedure,  subject  to 
constitutional  limitations,  is  "all  the  jurisdiction 
which  was  possessed  and  exercised  by  the  Supreme 
Court  of  the  Colony  of  New  York,  at  any  time." 
This  reference  is  to  the  Supreme  Court  as  estab- 
lished by  the  act  of  1691. 

ORIGINAL  ACT  OF  ESTABLISHMENT. 

Owing  to  the  scarcity  and  inaccessibility  of  the 
act  which  created  the  Supreme  Court,  we  deem  it 
our  duty  to  furnish  the  readers  with  a  verbatim 
copy  of  the  original  act  of  creation,  which  is  as  fol- 
lows: "And  that  their  Majesties  subjects  inhabit- 
ing within  this  province  may  have  all  the  good, 
proper  and  just  ways  and  means  for  the  secur- 
ing and  recovering  their  just  rights  and  de- 
mands, within  the  same,  be  it  further  enacted, 
and  it  is  hereby  enacted  and  ordained  by  the 
authority  aforesaid  that  there  shall  be  held  and 
kept  a  Supreme  Court  of  Judicature,  which 
shall  be  duly  and  constantly  kept  at  the  City 
of  New  York,  and  not  elsewhere,  at  the  several 
and  respective  times  hereafter  mentioned,  and  there 
shall  be  five  justices  at  least  appointed  and  commis- 
sionated  to  hold  the  same  court,  two  whereof,  to- 
gether with  one  chief -justice,   to  be  a  Quorum; 

122 


ORIGINAL  ACT  OF  ESTABLISHMENT. 

which  Supreme  Court  is  hereby  fully  empowered 
and  authorized  to  have  cognizance  of  all  pleas,  civil, 
criminal  and  mixed,  so  fully  and  amply  to  all  in- 
tents and  purposes  whatsoever,  as  the  courts  of 
Kings  Bench,  Common  Pleas  and  Exchequer, 
within  their  "Majesties"  Kingdom  of  England 
have  or  ought  to  have;  in  and  to  which  Supreme 
Court  all  and  every  person  and  persons  whatsoever 
shall  or  may,  if  they  shall  so  see  meet,  commence  or 
remove  any  action  or  suit,  the  deed  or  damage  in 
any  such  action  or  suit  being  upwards  of  twenty 
pounds,  and  not  otherwise,  or  shall  or  may  by  war- 
rant, writ  of  error  or  certiorari,  remove  out  of  any 
of  the  respective  courts  of  Mayor  and  Aldermen, 
Sessions  and  Common  Pleas,  judgment,  informa- 
tion or  indictment  there  had  or  depending,  and  may 
correct  errors  in  judgment,  or  reverse  the  same,  if 
by  just  cause,  provided  always  that  the  judgment 
removed  shall  be  upwards  of  the  value  of  twenty 
pounds. 

"Always  Provided  and  be  it  further  enacted  by 
the  authority  aforesaid  that  this  Supreme  Court 
shall  be  duly  and  constantly  kept  once  every  six 
months  and  not  of tener,  that  is  to  say — on  the  first 
Tuesday  of  April,  annually  and  every  year,  at  the 
City  Hall  of  the  said  City  of  New  York,  provided 
they  shall  not  sit  longer  than  eight  days.  And  be 
it  further  enacted  by  the  authority  aforesaid  that  it 
shall  not  be  lawful  for  any  person  or  persons  what- 
soever appointed,  elected  or  commissioned  to  be  a 

123 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK, 

justice  or  judge  of  the  aforesaid  courts  to  execute 
or  officiate  his  or  their  said  place  or  office  until  such 
time  as  he  or  they  shall,  respectively  take  the  oaths 
appointed  by  act  of  Parlriament,  to  be  taken,  in- 
stead of  the  oaths  of  allegiance  and  supremacy  and 
subscribe  the  test  in  open  court.  And  be  it  enacted 
by  the  authority  aforesaid  that  all  and  every  of  the 
justices  or  judges  of  the  several  courts  before  men- 
tioned be  and  are  hereby  especially  empowered  to 
make,  order  and  establish  all  such  rules  and  orders 
for  the  more  orderly  practicing  and  proceedings  in 
their  said  courts  as  fully  and  amply,  to  all  intents 
and  purposes  whatsoever,  as  all  or  any  of  the  said 
judges  of  the  several  courts  of  the  Kings  Bench, 
Common  Pleas  and  Exchequer  in  England  legally 
do.  Provided  always,  and  be  it  further  enacted  by 
the  authority  aforesaid,  that  no  person's  right  or 
property  shall  be  by  any  of  the  aforesaid  courts 
determined,  except  where  matters  of  fact  are  either 
acknowledged  by  the  parties,  or  judgment  be 
acknowledged  or  passed  by  the  defendant's  default, 
for  want  of  plea  or  answer,  unless  the  fact  be  found 
by  the  verdict  of  twelve  men  of  the  neighborhood, 
as  it  ought  of  right  to  be  done  by  the  law." 

FOUNDATION. 

The  underlying  elements  of  the  Supreme  Court, 
as  at  present  constituted,  are  to  be  found  in  the 
Court  of  Assize  established  under  the  regime  of 
Lovelace,  in  1667,  and  the  Court  of  Oyer  and  Ter- 

124 


COURT  OF  ASSIZE. 

miner,  instituted  by  Governor  Dongan,  who  suc- 
ceeded Andros,  in  1683. 

BODY  OF  NINE. 

During  the  Dutch  occupancy,  the  highest  tri- 
bunal in  the  colony  was  the  court  of  the  director- 
general  and  his  council ;  but  during  the  administra- 
tion of  Peter  Stuyvesant,  the  people  were  entitled 
to  a  representation  of  nine  members,  appointed  by 
the  governor,  to  confer  with  him  and  his  council  on 
public  matters.  This  body  constituted  a  court  in- 
ferior only  to  the  highest  court  in  the  province. 

The  body  of  nine  was  dissatisfied  with  the  arbi- 
trary actions  of  the  governor  and  forwarded  a  re- 
monstrance to  the  States  General  of  Holland, 
demanding  that  courts  be  established  in  the  province 
according  to  the  customs  of  the  Netherlands;  this, 
as  heretofore  related,  resulted  in  the  erection  of  a 
tribunal  composed  of  a  schout,  two  burgomasters, 
and  five  schepens. 

In  addition  to  its  judiciary  powers,  this  court 
exercised  executive  and  legislative  powers;  its  pro- 
cedure was  principally  by  arbitration,  but  it  had  a 
regular  system  of  declaration,  plea  and  rejoinder. 

COURT  OF  ASSIZE. 

At  the  time  of  the  surrender  of  New  Amsterdam 
to  the  English,  in  1664,  the  supreme  tribunal  estab- 
lished under  the  Duke's  Laws,  was  the  Court  of 
Assize,  convened  once  a  year  by  the  governor  and 

125 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

council,  in  conjunction  with  the  justices  of  the 
peace  throughout  the  province.  It  was  vested  with 
original  jurisdiction  in  criminal  matters,  and  in 
criminal  and  equitable  actions  of  twenty  pounds 
and  upwards;  trial  was  by  jury,  and  to  this  court 
was  carried  all  appeals  from  inferior  courts.  For 
reasons  already  given,  this  court  was  abolished. 

COURTS  OF  JUDICATURE. 

The  general  assembly  of  1691  appointed  a  com- 
mittee to  prepare  a  bill  for  the  establishment  of 
Courts  of  Judicature  in  the  province,  to  replace 
those  then  in  existence.  Among  other  results 
achieved  by  the  committee's  action,  was  the  estab- 
lishment of  the  Supreme  Court.  In  all  the  courts, 
except  those  of  justices  of  the  peace,  trials  were  to 
be  by  jury.  In  case  of  default  on  defendant's  part 
to  plaintiff's  pleadings,  a  jury  was  waived. 

The  action  of  England's  rulers  in  authorizing 
Governor  Sloughter  to  convene  an  assembly  to 
frame  laws  for  the  establishment  of  courts  for  the 
government  of  the  province  of  New  York,  evi- 
dently did  not  contemplate  a  Supreme  Court,  and 
a  high  Court  of  Chancery.  The  subsequent  rati- 
fication of  these  courts  was  conditioned  upon  limit- 
ing them  to  two  years.  On  November  11th,  1692, 
by  an  act  of  the  assembly,  these  courts  were,  how- 
ever, continued  for  two  years  more. 


126 

4 


CIRCUIT  COURTS, 


COURTS  OF  OYER  AND  TERMINER. 

Under  Dongan,  who  had  assumed  the  reins  of 
government  in  1683,  a  Court  of  Oyer  and  Ter- 
miner, with  minor  tribunals,  was  instituted,  with 
jurisdiction  in  criminal  cases,  and  all  civil  actions 
for  the  recovery  of  five  pounds  or  upwards,  such 
court  to  hold  an  annual  session  in  each  county  of  the 
province.  Courts  of  Oyer  and  Terminer,  thus 
founded  in  the  latter  part  of  the  seventeenth  cen- 
tury, were  expressly  abolished  in  the  nineteenth 
century,  under  the  Constitution  of  1895,  and  their 
powers  became  vested  in  the  Supreme  Court  as  it 
now  exists. 

CIRCUIT  COURTS. 

The  Supreme  Court  as  organized  under  the  act 
of  the  Colonial  Assembly  of  1691,  continued,  with 
substantial  modifications  bj^  ordinances  of  1699  and 
1704,  until  the  Constitution  of  1777,  which  re- 
organized and  perpetuated  it,  providing  only  for 
the  appointment,  quahfication  and  tenure  of  all 
judges.  The  modifications  alluded  to,  comprise 
those  effected  by  the  ordinance  of  1699,  which  pro- 
vided that  a  justice  of  the  Supreme  Court,  attended 
by  two  justices  of  the  peace,  should  annually  hold 
Circuit  Court  in  the  respective  counties,  and  which 
required  the  Supreme  Court  to  sit  in  New  York 
city  on  the  first  Tuesdays  in  April  and  October,  for 
a  period  of  five  days  to  each  session. 

127 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK.      ' 

The  ordinance  of  1704  empowered  the  Supreme 
Court  to  exercise  all  jurisdiction  and  powers 
possessed  by  the  Courts  of  Queens  Bench,  Common 
Pleas  and  Exchequer  of  England.  By  the  amend- 
ment embodied  in  the  act  of  1692,  intended  to  keep 
pace  with  the  colony's  growing  interests,  a  circuit 
of  Supreme  Court  judges  was  established  for  out- 
lying districts,  where  previously  no  sessions  of  court 
had  been  held ;  the  circuit  was  to  be  held  once  a  year 
by  a  judge  especially  commissioned.  Notices  of 
appeal,  and  complaints  were  to  be  filed  prior  to  the 
holding  of  court ;  where  no  such  notices  of  appeals, 
or  complaints  had  been  filed,  the  term  of  court  was 
dispensed  with  for  that  year. 

It  was  by  way  of  co-operation,  and  for  the  more 
effectual  administration  of  justice,  that  the  judge 
of  court,  designated  for  the  circuit,  had  associated 
with  him  on  the  bench,  two  local  justices  of  the 
peace.  The  procedure  followed  was  that  of  the 
Supreme  Court  at  New  York. 

SPECIAL  TERMS  OF  COURT. 

The  act  which  authorized  the  Circuit  Courts  also 
provided  for  a  session  of  Supreme  Court  to  be  held 
annually  for  the  county  of  Orange,  on  the  first 
Tuesdays  in  April  and  October  of  each  year;  for 
the  city  and  county  of  Albany,  on  the  first  Tuesday 
in  May ;  for  the  county  of  Westchester,  on  the  last 
Tuesday  in  June;  for  Kings  County,  on  the  first 
Tuesday  in  August,  and  for  Richmond  County,  on 

128 


SPECIAL  TERMS  OF  COURT. 

the  second  Tuesday  in  June.  The  sessions  of  each 
covirt  were  to  last  only  two  days,  and  the  length  of 
the  term  at  'New  York  was  reduced  from  eight  to 
five  days. 

The  act  of  October  24th,  1695,  extended  the  pro- 
vision of  the  last  act  relative  to  the  establishment  of 
courts,  for  two  years,  and  on  the  21st  day  of  April, 
1697,  an  act  was  passed  continuing  them  for  one 
year  longer.  In  1698  no  further  extension  act  was 
passed,  and  all  courts  ceased  to  exist. 

AMENDED  PROCEDURE. 

Governor  Bellamont  called  the  attention  of  the 
Assembly  to  the  fact,  and  recommended  the  passage 
of  an  act  extending  those  courts  that  formerly 
existed.  The  Assembly  proceeded  to  enact  a  law 
re-establishing  the  different  tribunals,  but  the  gov- 
ernor claimed  that  it  purposely  drafted  the  act  so 
as  to  contain  clauses  in  contravention  of  the  estab- 
lished courts  and  practices,  and  contrary  to  the  laws 
of  England,  with  the  intention  of  forcing  him  to 
veto,  thus  leaving  the  province  without  courts,  pre- 
sumably on  account  of  the  governor's  dissent.  He 
therefore  refused  his  assent,  and  dissolved  the  As- 
sembly. He  called  upon  Chief -Justice  Smith  and 
Judge  Ingraham  to  advise  him  as  to  his  powers  in 
the  premises.  It  had  been  customary,  since  Don- 
gan's  time,  to  include  a  clause  in  the  governor's 
commission,  authorizing  him,  with  the  consent  of 
the  council,  to  establish  courts  for  the  province. 

129 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

Smith  and  Ingraham  decided  that  since  the  King 
had  no  power  to  estabhsh  courts  in  England  without 
the  consent  of  Parliament,  the  King's  deputy  had 
no  such  power.  Bellamont  refused  to  accept  their 
opinion,  and  claimed  that  no  such  clause  would 
have  been  inserted  had  the  intention  been  not  to 
give  full  authority  to  the  governor  and  council. 
He  therefore  issued  an  ordinance  with  the  assent 
of  the  council,  re-establishing  all  the  courts  in  the 
colony,  as  they  had  existed  before  their  expiration. 
This  occurred  in  1699. 

Following  this  action  of  the  governor  and  his 
council,  in  assuming  to  act  as  agents  of  the  King, 
the  question  presented  itself  to  lawyers,  as  to  the 
right  of  the  Supreme  Court  to  hear  actions,  and  for 
many  years  there  were  controversies  on  this  point, 
before  the  legal  profession  recognized  it  as  a  reg- 
ular court.  Nevertheless,  the  court,  from  its  re- 
establishment  by  Bellamont,  continued  its  existence 
until  the  Revolution. 

x\DDITIONAL  MENTION. 

The  next  mention  of  the  Supreme  Court  in  any 
of  the  acts  of  Assembly,  was  on  November  27, 
1702,  on  the  occasion  of  its  not  having  met  at  the 
October  term,  for  that  year.  The  act  provided  that 
all  actions  that  would  have  been  heard  at  the  Octo- 
ber term,  would  be  adjourned  by  the  act,  until  the 
next  term  of  the  Supreme  Court,  to  be  held  at  New 
York  in  April,  1703. 

130 


CHIEF- JUSTICE  DUDLEY. 

Nine  days  after  the  passage  of  the  act  creating 
the  Supreme  Court,  the  judges  were  appointed  by 
the  governor.  James  Graham,  the  first  attorney- 
general  of  the  state,  was  appointed  shortly  after- 
ward in  the  same  year. 

SALARY. 

No  provision  having  been  made  for  the  salary  of 
the  Supreme  Court  judges,  the  Assembly  passed  an 
act  which  provided  a  salary  for  the  chief -justice  and 
his  first  associate;  no  allowance  whatsoever  was 
made  for  the  other  judges,  nor  for  the  attorney- 
general;  but  in  1693,  fifty  pounds  per  annum  were 
allowed  the  attorney-general. 

CHIEF-JUSTICE  DUDLEY. 

Joseph  Dudley  was  commissioned  to  be  the  first 
justice,  and  Thomas  Johnson,  William  Smith, 
Stephen  Van  Cortlandt  and  William  Pinhorne 
were  made  associate  judges.  It  was  understood 
that  the  chief -justice  was  to  hold  his  commission 
during  the  King's  pleasure. 

Dudlej^'s  term  lasted  eighteen  months,  when  he 
was  removed  by  Benjamin  Fletcher,  the  new  gov- 
ernor, because  he  was  not  a  resident  of  the  province. 
This  governor  later  removed  William  Pinhorne 
and  Chidley  Brooke,  two  of  the  associate  judges  of 
the  court;  the  former  for  speaking  disrespectfully 
of  the  King,  and  the  latter  for  official  negligence. 

131 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 


SUCCESSIVE   CHIEF- JUSTICES. 

Dudley  was  succeeded  by  William  Smith,  who 
filled  the  office  for  a  term  of  eight  years;  he  was 
succeeded  in  1700  by  Van  Cortlandt,  who  remained 
in  office  about  one  month.  It  was  just  previous  to 
this  that  Gov.  Bellamont  decided  to  re-establish  the 
Supreme  Court,  and  other  courts  originating  in  the 
Constitution  of  1691.  His  object  was  to  have  an 
able  English  lawyer  sent  over  by  the  King,  a  man 
of  sufficient  wealth  and  social  position  to  be  above 
the  temptations  of  the  low  arts  and  practices  then 
prevalent  in  the  colony. 

CHIEF- JUSTICE  ATTWOOD. 

William  Attwood  was  sent  out  from  England 
with  a  writ  of  mandamus  addressed  to  the  governor, 
directing  the  latter  to  commission  Attwood  to  act  as 
chief -justice  of  the  province  under  the  provincial 
seal. 

Although  Attwood,  who  was  a  trained  lawyer, 
had  been  selected  for  especial  fitness,  both  socially 
and  professionally,  his  gross  misbehavior  on  the 
bench,  during  his  brief  occupancy  of  little  more 
than  a  year,  had  brought  out  against  him  an  order 
of  arrest,  signed  by  Lord  Cornbury,  the  then  gov- 
ernor. To  escape  the  execution  of  this  order,  Att- 
wood was  forced  to  flee  the  province  under  cover 
of  darkness. 

132 


DIFFERENT    CHIEF-JUSTICES. 


LORD   CORNBURY  S  LETTER. 

In  a  letter  to  the  Lords  of  Trade  (4  Colonial 
Documents  1010),  Lord  Cornbury  says:  "Attwood 
in  the  execution  of  his  office  as  Chief -Justice  and 
First- Judge,  in  almost  all  cases  that  came  judi- 
cially before  him,  by  general  report  of  all  present, 
did  openly,  notoriously  and  most  scandalously,  and 
with  wonderful  partiality,  in  almost  all  cases  in 
which  his  son  was  concerned  as  counsel,  espouse  and 
indeed  plead  and  give  countenance  to  such  causes, 
and  finally  gave  judgment  on  the  son's  side,  by 
means  of  which  justice  was  perverted,  the  laws 
abused  and  the  subjects  exceeding^  injured;  which 
recommended  his  son  to  great  practice,  and  large 
sums  of  money  were  by  parties  given  to  him,  to  buy 
his  father's  favor." 

DIFFERENT  CHIEF- JUSTICES. 

William  Smith,  above  mentioned,  was  then  tem- 
porarily appointed  to  the  office  made  vacant  by 
Lord  Cornbury's  action  in  removing  the  incum- 
bent, until  the  arrival  in  April,  1703,  of  John 
Bridges,  another  English  lawyer.  Bridges  died  in 
office  and  Roger  Mompesson,  by  profession  a  law- 
yer, was  commissioned,  July  15th,  1704,  to  be  chief - 
justice  of  New  York  and  New  Jersey. 

He  it  was  who  first  brought  into  the  colony  the 
English  forms  of  procedure;  he  claimed  that  the 
procedure  of  the  colonial  courts  was  now  "more 

133 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

conformable  to  the  practice  of  Westminster  Hall 
than  any  other  of  Her  Majestie's  plantations  in 
America."  His  death  occurred  while  in  office,  on 
March  15,  1715,  and  he  was  succeeded  by  Lewis 
Morris,  whose  opposition  to  Governor  Cornbury 
had  brought  him  into  prominence.  He  was  a  strong 
partisan  in  religion  and  politics,  and  his  pronounced 
Presbyterianism  and  Republicanism  had  rendered 
him  unpopular  in  office.  His  dissenting  opinion  in 
the  "cause  celebre"  of  Gov.  Cosby  vs.  Rip  Van 
Dam,  he  caused  to  be  printed  with  an  angry  tirade 
against  the  governor,  in  which  the  latter's  ac- 
tions and  character  were  set  forth  in  a  bad  light. 
This  official  malfeasance  led  to  his  removal  in  1733. 
Morris'  successor  was  James  Delancey,  a  man  of 
equally  extreme  views,  but  radically  opposed  to 
those  of  his  predecessor.  Delancey  had  been  pro- 
moted from  the  position  of  second  judge  to  that  of 
chief -justice,  in  which  latter  capacity  he  presided 
until  his  death  On  July  30,  1760. 

TENURE  OF  OFFICE. 

We  now  come  to  a  consideration  of  the  official 
terms  of  the  justices  of  the  Supreme  Court:  Up  to 
Delancey 's  term,  the  associate  judges  of  the  prov- 
ince were  nominated  and  commissioned  by  the  gov- 
ernor, and  held  office  during  the  latter's  pleasure; 
the  chief -justice,  however,  was  commissioned 
directly  by  the  Crown,  and  could  be  removed  only 
by  the  King. 

134 


INNOVATION  INTRODUCED  BY  GOV.  CLINTON. 


INSTABILITY  OF  OFFICE. 

The  effect  of  such  methods  of  organization  was 
to  render  the  judiciary  unstable  and  partisan.  The 
judges  were  generally  members  of  the  aristocracy 
and  the  governor's  council,  who  took  sides  on  the 
political  questions  of  the  day,  which  agitated  the 
body  politic,  and  thus  rendered  themselves  liable 
to  removal  from  office  on  a  change  of  political  par- 
ties ;  this  fate  befell  many  of  them. 

INNOVATION  INTRODUCED  BY  GOV.  CLINTON. 

Upon  Governor  Clinton's  accession  to  office,  he 
introduced  a  striking  innovation  in  this  custom: 
In  recognition  of  Delancey's  services  on  the  bench, 
he  tendered  him,  in  1746,  a  new  commission  as  chief- 
justice  of  the  Supreme  Court,  during  good  be- 
havior; similar  commissions  were  later  granted  to 
some  of  the  assistant  judges. 

This  measure  of  judicial  reform  was  most  whole- 
some for  the  cause  of  public  justice.  The  judges 
were  rendered  independent  of  political  affiliations, 
and  the  chief -justice,  inspired  by  motives  of  public 
good,  placed  himself  in  opposition  to  prevailing 
political  power  as  concentrated  in  the  person  of  the 
governor.  This  independent  action  enhanced  De- 
lancey's later  popularity;  but  the  fire  had  been 
kindled,  and  time  only  fanned  the  flames  of  opposi- 
tion to  the  corrupt  and  debauched  state  of  public 
affairs. 

135 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 


CONSTITUTIONALITY  OF  OFFICE  OF  JUDGE. 

The  validity  of  the  governor's  grant  extending 
the  judicial  office  was  challenged  and  attacked  on 
the  ground  that  the  commission  had  not  emanated 
from  the  Crown,  a  custom  which  had  theretofore 
prevailed. 

The  attorney  and  solicitor  general  of  England, 
to  whom  the  matter  was  submitted  for  opinion,  held 
that  it  was  contrary  to  the  usage  of  the  colony  for 
the  governor  to  grant  si^ch  a  commission,  but  was 
nevertheless  valid  and  legal,  and  irrevocable  dur- 
ing good  behavior. 

The  constitutionality  of  the  judges'  commission 
was  again  called  into  question  upon  Delancey's 
death  in  1760,  which  was  contemporaneous  with 
that  of  the  King.  It  was  the  opinion,  quite  gen- 
erally shared,  that  the  commissions  granted  to  the 
judges  expired  with  the  demise  of  the  King. 

Attempts  were  made  to  establish  the  constitu- 
tionality of  the  tenure  under  the  commissions 
granted.  An  act  which  passed  the  Assembly,  had 
for  its  purport  the  re-appointment  of  the  judges 
then  in  office,  during  good  behavior.  This  was  ren- 
dered ineffectual  by  the  veto  of  Golden,  acting  gov- 
ernor, and  when  the  time  for  holding  court  ap- 
proached, the  judges  refused  to  act,  and  threw  up 
their  commissions. 

OFFICE  RENDERED  UNATTRACTIVE. 

The  King  and  governor  adhered  to  their  posi- 

136 


OFFICE  RENDERED  UNATTRACTIVE. 

tion,  and  refused  to  grant  new  terms  depending 
upon  good  behavior,  which  had  the  effect  of  render- 
ing the  office  less  desirable  to  those  eligible  to  it. 
After  some  difficulty,  a  chief -justice  was  found  in 
the  person  of  William  Pratt,  a  resident  of  Massa- 
chusetts. From  the  commencement  of  his  term  of 
office,  his  associate  justices  on  the  bench  and  the 
members  of  the  bar  treated  him  with  disrespect  and 
subjected  him  to  indignities.  The  reasons  for  this 
unusual  and  unseemly  conduct  were  two-fold: 
First,  because  the  chief -justice  was  not  a  resident, 
and  secondly,  because  he  accepted  his  commission 
during  pleasure  only. 

The  home  government,  ever  jealous  of  investing 
the  colonial  bench  with  too  much  independence, 
declined  to  accede  to  a  petition  of  the  Assembly  to 
the  reigning  monarch,  George  III,  looking  toward 
the  extension  of  the  tenure  of  the  judges'  office 
during  good  behavior,  as  had  been  promised  by  that 
King  on  the  occasion  of  his  coronation.  Thereafter 
up  to  the  Revolution  the  judges  held  office  accord- 
ing to  the  custom  in  vogue  before  Delancey's  term. 

ACQUIESCENCE  IN  COURT  CUSTOM. 

The  successor  in  office  of  Chief- Justice  Pratt  was 
Daniel  Horsmanden,  who  had  been  associate  justice 
since  March  16,  1763,.  and  who  held  his  new  office 
until  his  death  on  September  20,  1778,  after  the 
Declaration  of  Independence  had  been  proclaimed, 
abolishing  the  court. 

137 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

The  original  act  of  1691  stated  that  the  court 
should  consist  of  five  judges,  which  was  the  number 
up  to  Attwood's  time.  When  he  came  out  to  the 
colony,  all  the  associate  judges  had  ceased  to  act, 
and  he  held  court  alone,  until  Abraham  De  Puyster 
and  Robert  Walters  were  commissioned  to  act  as 
his  associates. 

In  his  ordinance,  Bellamont  made  no  numerical 
limitation  to  the  Supreme  Court  bench.  It  then 
consisted  of  a  chief -justice  and  two  associate  jus- 
tices, and  they  being  found  competent  and  adequate 
to  transact  the  court's  business,  no  change  in  num- 
ber was  made  until  1758. 

CHIEF-JUSTICE  DELANCEY. 

Chief -Justice  Delancey  was  nominated  by 
George  II  to  the  office  of  lieutenant-governor  in 
October,  1747,  from  which  office  he  was  later  raised 
to  the  governorship  on  the  recurring  of  a  vacancy 
in  the  latter  office.  While  leaving  the  entire  busi- 
ness of  the  court  to  his  associates,  he  continued  to 
hold  the  office  of  chief -justice.  This  left  but  two 
judges  to  take  care  of  the  business  of  the  court,  a 
fact  which  was  at  times  found  inconvenient,  espe- 
cially in  1758,  when  a  case  involving  title  to  land, 
wherein  Trinity  Church  was  plaintiff,  came  before 
the  court.  The  two  associate  judges,  Chambers 
and  Horsmanden,  were  trustees  of  the  church,  and 
a  protest  was  made  against  interested  judges  par- 
ticipating  in   the   trial.      Delancey   therefore   ap- 

188 


CHARACTERISTICS  OF  THE  BENCH. 

pointed  David  Jones  as  an  additional  judge  of  the 
court,  and  thenceforth,  to  the  time  of  the  Revolu- 
tion, the  court  was  composed  of  one  chief -justice 
and  three  associate  judges. 

COLONIAL  ARISTOCRACY. 

From  the  manner  in  which  estates  had  been  cre- 
ated by  governmental  grant  and  patent,  a  form  of 
feudal  aristocracy  had  taken  root  and  branch  in  the 
colony,  which  asserted  itself  in  the  councils  of  state. 
The  influence  of  these  great  landed  families  was 
felt  either  in  controlling  the  administration  of  pub- 
lic affairs,  or  in  opposition  to  those  in  power.  From 
such  families  the  associate  judges  were  usually 
chosen  by  the  governor,  and  as  the  judges  were 
generally  members  of  the  council,  the  position  was 
much  sought,  not  merely  for  its  dignity  and  honor, 
but  for  the  influence  it  commanded  in  colonial 
affairs. 

CHARACTERISTICS  OF  THE  BENCH. 

With  the  exception  of  the  woolsack  and  judicial 
robes  which  were  worn  by  the  English  bench,  the 
forms  and  customs  prevailing  in  the  courts  of  Eng- 
land obtained  here;  the  colonial  bar,  however,  did 
not  follow  the  custom  of  wearing  a  wig  and  gown, 
which  distinguished  their  brethren  of  the  English 
bar. 


139 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 


JUDGES    SALARIES. 

The  emoluments  of  the  office  of  judge  were  not 
such  as  to  make  it  financially  desirable ;  in  fact,  only 
those  of  independent  means  could  afford  to  accept 
the  honor,  and  suitably  maintain  the  dignity  of  the 
office. 

At  first  only  the  chief -justice  and  the  second 
judge  received  a  salary;  in  1698,  all  the  judges  were 
allowed  some  compensation  for  their  services.  The 
salary  at  first  received  by  the  chief -justice  was  one 
hundred  thirty  pounds  annually,  and  that  of  his 
first  assistant  one  hundred  pounds.  In  1702,  when 
Attwood  came  out,  he  was  granted  three  hundred 
pounds  per  annum,  the  first  associate  judge 
received  one  hundred  fifty  pounds  and  the  sec- 
ond associate  judge  fifty  pounds.  In  1715  the  As- 
sembly allowed  the  chief -justice  of  the  Supreme 
Court,  three  hundred  pounds  per  annum  for  five 
years,  for  holding  circuit  courts.  In  1765,  the  Gen- 
eral Assembly  allowed  Daniel  Horsmanden  three 
hundred  pounds  for  one  year,  and  the  other  justices 
two  hundred  pounds  for  the  same  time;  this  salary 
was  expected  to  defray  the  expenses  of  going  the 
circuit  of  the  province,  and  not  intended  as  the  offi- 
cial salary  for  holding  sessions  of  the  Supreme 
Court  at  New  York. 

In  1774,  just  prior  to  the  Revolution,  the  salary 
of  the  chief -justice  was  raised  to  five  hundred 
pounds  sterling,  paid  by  the  Royal  Exchequer,  and 

140 


TERMS  OF  COURT  CHANGED. 

three  hundred  pounds  in  New  York  currency,  to  be 
paid  by  the  colony;  the  associate  judges  were  to 
receive  two  hundred  pounds  each  in  New  York  cur- 
rency. 

STATUTORY  TERMS  OF  COURT. 

Among  the  amendments  and  changes  made  dur- 
ing the  period  just  traversed,  and  relative  to  the 
Supreme  Court,  an  ordinance  issued  by  Lord  Corn- 
bury  on  April  3,  1704,  is  worthy  of  mention.  It 
pertained  to  the  time  and  manner  of  holding  court. 
By  its  provisions  court  was  to  be  held  on  the  first 
Tuesdays  in  June  and  September,  and  the  second 
Tuesdays  in  October  and  March  in  every  year,  at 
the  city  of  New  York,  or  at  such  other  place  as  the 
governor  might  appoint  by  official  proclamation,  to 
be  issued  at  least  twenty  days  before  the  holding  of 
court,  the  sessions  to  continue  no  longer  than  five 
days. 

TERMS  OF  COURT  CHANGED. 

Owing  to  the  inclemency  of  the  weather  in  the 
month  of  January,  which  made  colonial  travel  diffi- 
cult and  impracticable  and  because  of  the  heat  and 
harvest  in  Jvily,  and  the  October  and  April  terms 
being  too  short  to  transact  the  business  of  the  court, 
it  was  decided  that  court  be  held  in  the  city  of  New 
York  on  the  third  Tuesdays  in  October,  January 
and  April,  and  the  last  Tuesday  in  July  of  every 
year;  the  terms  for  April  and  October  were  to  be 
held  every  day  except  Sunday,  from  the  commence- 

141 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

ment  until  the  end  of  Thursday  in  the  week  next 
ending,  thus  making  the  terms  considerably  longer 
than  formerly. 

On  the  30th  of  October,  1760,  this  ordinance  was 
repealed  by  Golden  and  his  council,  and  the  April 
and  October  terms  made  two  days  longer  than  pre- 
viously. Colden's  ordinance  also  empowered  any 
one  or  more  of  the  justices  to  hold  court  in  any 
county  of  the  province,  for  the  purpose  of  trying 
causes  brought  on  for  trial  in  the  Supreme  Court. 
The  causes  were  to  be  tried  at  the  first  term  of  court, 
and  judgment  handed  down  at  any  subsequent* 
term.  The  session  of  court  was  to  last  until  the  con- 
clusion of  its  business,  but  in  no  event  longer  than 
six  days. 

Golden  also  established  a  court  to  be  held  in  Al- 
bany, Dutchess,  Ulster,  and  Orange  counties  in 
June,  in  Kings,  Queens,  Suffolk,  and  Westchester 
counties  in  September,  and  in  Richmond  county  in 
May.  The  business  of  the  court  was  under  the 
charge  of  two  clerks;  the  chief  clerk  held  office  at 
the  city  of  New  York,  and  the  deputy-clerk  per- 
formed his  duties  on  the  circuits  of  court.  It  was 
the  latter's  duties  to  transmit  all  records  and  pro- 
cesses of  the  Supreme  Gourt  on  circuit,  to  the  city  of 
New  York  for  record. 

ADDITIONAL  POWERS. 

By  act  of  November  27th,  1741,  it  was  enacted 
that  the  justices  of  the  Supreme  Gourt  could  hold 

142 


LAWYERS    FEES  FOR  THE  SLTPREME  COURT. 

circuit  courts  under  commission  from  the  governor, 
with  the  seal  of  the  colony  annexed,  without  special 
appointment  by  the  Crown.  This  authorization,  at 
first  limited  to  six  years,  was  further  continued,  and 
in  1746  made  perpetual. 

An  enactment  of  May,  1746,  empowered  the  jus- 
tices of  the  Supreme  Court  to  commission  as  many 
persons  as  thej^  saw  fit,  in  all  counties  of  the  colony, 
to  take  affidavits  to  be  read  in  any  causes  depending 
in  the  Supreme  Court,  as  masters  of  Chancery  Ex- 
traordinary in  England  were  wont  to  do. 

FEES. 

The  exactions,  often  extortionate  and  uncon- 
scionable, demanded  bv  the  county  officers,  led  to 
many  disputes,  and  resulted  in  the  passage  by  the 
Assembly,  on  May  24,  1709,  of  an  act  fixing  the 
fees  of  every  officer,  under  all  circumstances.  A 
schedule  of  fees  relating  to  the  Supreme  Court  is 
herewith  published,  conformably  to  the  original. 

THE  JURY^S  FEES  FOR  THE  SUPREME  COURT. 

For  every  juryman  it  gave  one  shilling. 

LAWYERS^  FEES  FOR  THE  SUPREME  COURT. 

"  For  a  Retaining  Fee,  Six  Shillings. 

"  For  Drawing  Writ,  Three  Shillings. 

"  For  Drawing  a  Declaratiin,  Six  Shillings. 

"  For  Drawing  a  Plea,  Three  Shillings. 

"  For  Pleading  upon  Try  all.  Ten  Shillings." 

143 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 


THE  JUDGES    FEES  FOR  THE  SUPREME  COURT. 

"  For  Allowance  of  a  Writ  of  Errors,  Two  Shil- 
lings. 

"  For  Taking  Bail,  Two  Shillings. 

"  For  Filing  Same,  Six  Pence. 

"  For  Every  Recognizance,  Two  Shillings. 

"  For  Filing  Thereof,  Six  Pence. 

"  For  Habeas  Corpus,  Two  Shillings. 

"  For  Certiorari,  Three  Shilhngs. 

"  For  Prohibition,  One  Shilling  and  Six  Pence. 

"  For  a  Procedendo,  One  Shilling  and  Six 
Pence. 

"  For  Supersedeas,  One  Shilling. 

"  For  Discontinuance,  One  Shilling. 

"  Taking  a  Bill  of  Costs  by  any  Judge  or  Clerk 
of  the  Court,  One  Shilling. 

"  For  Acknowledging  a  Deed,  Two  Shillings. 

"  For  every  Cause  in  the  Court,  unless  Criminal, 
Six  Shillings. 

"  For  Admitting  an  Attorney  to  Practice  in 
Court,  One  Pound,  Ten  Shillings." 

The  act,  as  before  stated,  enumerates  the  fees  of 
every  officer  in  the  colony,  and  takes  up  sixteen 
pages  of  the  standard  law  book  size. 

JURISDICTIONAL  LIJMITATIONS. 

An  act  was  passed  on  October  11,  1709,  which 
was  a  substantial  re-enactment  of  the  jurisdictional 
limitation  to  not  less  then  twenty  pounds,  of  actions 

144 


REMEDIAL  LEGISLATION DEBTORS. 

triable  in  the  Supreme  Court.  The  purpose  of  this 
legislation  was  to  make  the  minimum  amount  cog- 
nizable by  the  Supreme  Court,  on  a  case  from  the 
Mayor's  Court  or  the  Court  of  Common  Pleas,  in- 
volving the  title  to  real  property,  twenty  pounds. 

DISCOURAGEMENT  OF  LITIGATION. 

The  litigious  spirit  seems  to  have  been  most  ram- 
pant at  this  epoch  in  our  juridical  history.  This 
may  fairly  be  ascribed  to  the  conflicting  interests 
arising  from  the  still  primitive  social  and  political 
conditions  under  which  the  colony  was  struggling. 

The  machinery  of  the  law  was  insufficient  for  the 
steadily  increasing  business  brought  to  it,  and  polit- 
ical economy  required  a  curtailment,  rather  than  an 
increase  of  expense.  To  allay  this  vexatious  con- 
dition and  check  the  overreaching  tendencies  here- 
tofore encouraged  by  the  smooth  and  convenient 
resort  to  law,  litigation  was  to  be  discouraged  or 
made  prohibitive.  Two  acts  were  accordingly 
passed  on  September  4th,  1714,  one  "an  act  prevent- 
ing Multiplicity  of  Lawsuits,"  the  other  "An  act 
for  Shortening  Lawsuits  and  Regulating  the  Prac- 
tice of  Law." 

REMEDIAL    LEGISLATION DEBTORS. 

Following  the  custom  prevalent  in  England, 
debtors  in  arrears  were  imprisoned  by  an  order  of 
court.    This  harsh  custom  prevailed  until  1831,  and 

145 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

was  the  cause  of  much  distress  among  the  poor,  and 
required  remedial  legislation,  which  found  its  ex- 
pression in  an  act  passed  Octoher  29th,  1730, 
entitled,  "An  Act  for  the  Rehef  of  Insolvent  Debt- 
ors." 

INSOLVENT  DEBTOR^S  ACT. 

By  virtue  of  this  act  an  imprisoned  debtor  was 
accorded  the  right  to  petition  the  Supreme  Court 
for  a  hearing  under  oath,  as  to  his  financial  ability. 
The  creditor  received  notice  to  attend  the  hearing; 
the  debtor  was  then  sworn  under  a  prescribed  oath, 
and  if  his  financial  inability  to  pay  was  satisfactorily 
established,  he  was  released  from  his  obligation.  If 
property  of  the  debtor  were  discovered,  the  creditor 
had  his  remedy  of  execution  and  levy  under  the 
judgment,  against  the  debtor's  property  and  assets. 

A  defendant  imprisoned  for  a  debt  under  forty 
shillings  could  present  a  petition  in  the  same  form, 
to  a  justice  of  the  peace,  on  whom  was  conferred 
full  jurisdiction  in  the  matter.  If  the  examination 
showed,  by  oath  of  the  debtor,  that  his  possessions, 
besides  wearing  apparel,  did  not  exceed  forty  shil- 
lings, he  was  discharged  and  no  longer  liable  to  im- 
prisonment for  the  same  debt. 

ACT  AMENDED. 

The  immunities  afforded  by  this  act  seem  to  have 
been  abused,  for  on  October  14th,  1732,  we  find  that 
the    Assembly    passed    another    act    relative    to 

146 


ACT  AMENDED. 

insolvent  debtors,  which  was  virtually  an  amend- 
ment of  the  former. 

Similar  procedure  was  observed  as  to  petitions 
and  oaths ;  but  to  secure  his  release,  the  prisoner  w  as 
required  to  pledge  himself  for  service  to  the  judg- 
ment creditor,  for  whatever  period  the  justice 
hearing  the  petition  should  decide,  in  order  to  secure 
his  discharge  of  the  debt ;  if  the  debt  were  paid  dur- 
ing this  indenture,  the  debtor  was  released. 

CONSTITUTIONALITY  OF  THE  KING^S  PREROGATIVE. 

It  is  interesting  to  note  that  when  Horsmanden 
was  chief -justice  of  the  Supreme  Court,  he  and  his 
associates  took  a  firm  stand  against  the  government 
in  the  matter  of  appeals  from  civil  cases. 

The  point  at  issue  was  w^hether  the  King,  in 
allowing  an  appeal  from  the  Supreme  Court  to  the 
governor  and  his  council,  was  not  exceeding  his 
constitutional  powers;  no  such  right  was  conceded 
to  his  Majesty  in  England,  and  it  was  questioned 
here.  The  danger  inherent  in  such  a  practice  was 
that,  upon  an  appeal  after  conviction,  to  the  gover- 
nor and  council,  some  influential  defendant  might 
nullify  the  jury's  verdict;  such  a  miscarriage  of  jus- 
tice actually  occurred  in  1767,  in  the  case  of  Force 
vs.  Cunningham. 


147 


CHAPTER   IX. 


COURT  OF  CHANCERY, 


Early  Equity  Jurisdiction — Equity  Jurisdic- 
tion AND  Procedure  of  Existing  Courts — 
Early  Chancery — Jurisdiction  in  Equity 
— Duration  of  the  High  Court  of  Chancery 
— Establishment  of  a  Court  of  Chancery — 
Opposition  to  Court  of  Chancery — Grounds 
OF  Opposition — Arbitrary  Action  of  Phil- 
LiPSE — Nature  of  Griea^ance — Revision  of 
Court — Agitation  against  Court — Action 
OF  Bench  and  Bar — Petition  to  Gov.  Clarke 
— SuccEssn^  Chancellors — Dunmore^s  Di- 
LEM]viA — Master  of  the  Rolls — Character  of 
THE  Chancellors — Court  Minutes. 

EARLY  EQUITY  JURISDICTION. 

No  distinction  was  made  by  the  Dutch  law  as 
administered  in  New  Amsterdam,  between  actions 
at  law  and  suits  in  equity.  The  equitable  relief  that 
might  be  afforded  by  the  court  in  person,  without 
the  intervention  of  a  jury,  was  jeopardized  by  en- 
trusting the  balancing  of  the  scales  to  the  laby- 
rinthine mazes  of  legal  chicanery  and  the  untrained 
supervision  of  laymen. 

149 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

The  English  courts,  ever  awake  to  the  moral  as 
well  as  legal  rights  of  the  subject,  had  at  an 
early  date  delivered  the  administration  of  justice 
from  the  systematic  and  refined  niceties  of  mere 
skill  and  dexterity  in  the  interpretation  and  appli- 
cation of  the  principles  of  law. 

To  remedy  the  indiscriminate  mingling  of  law 
and  equity,  the  outgrowth  of  Dutch  jurisprudence, 
a  court  similar  in  practice  to  the  English  Court  of 
Chancery  was  established.  The  widespread  specu- 
lation in  land,  always  a  prolific  source  of  litigation, 
had  multiplied  the  controversies  that  concerned  the 
muniments  of  title ;  the  subdivision  and  enlargement 
of  estates,  by  bequest,  gift,  and  purchase ;  the  com- 
munity and  diversity  of  interests;  all  matters  of 
equity  jurisprudence  had  long  required  adjustment 
by  a  court  of  equity.  The  Dutch  system  of  refer- 
ring such  matters  to  arbitrators  was  but  a  partial 
remedy  for  the  complications  engendered  by  the 
growth  of  New  York. 

EQUITY  JURISDICTION  AND  PROCEDURE  OF  EXISTING 

COURTS. 

The  town  courts  had  equity  jurisdiction  to  the 
amount  of  five  pounds,  and  the  Court  of  Sessions, 
and  that  of  Assize,  had  unlimited  jurisdiction  in 
all  matters.  The  procedure  in  vogue  in  the  colony 
was  conformed,  as  closely  as  possible,  to  the  High 
Court  of  Chancery  in  England. 

x\n  action  was  brought  before  the  court  by  a  bill 

150 


EQUITY   JURISDICTION    AND    PROCEDURE. 

in  equity,  and  an  answer  required  thereto ;  witnesses 
were  examined  as  in  England,  and  the  case  was 
tried  without  a  jury.  This  practice  was  continued 
until  a  High  Court  of  Chancery  was  erected  under 
Dongan's  administration  here,  in  1683.  This  was 
merely  giving  legislative  sanction  to  a  tribunal  that 
had,  "mutato  nomine,"  already  been  in  existence 
in  the  colony  since  its  earliest  period. 

EARLY    CHANCERY. 

The  governors  appointed  by  the  Duke  of  York 
had  in  virtue  of  their  appointment  as  such,  and  the 
Duke's  instructions,  acted  as  chancellors,  without  a 
court,  as  it  were,  since  a  regular  Court  of  Chancery 
was  not  erected  until  1683.  In  deference  to  a  pop- 
ular demand  therefor,  a  Court  of  Chancery  had 
been  contemplated  in  Duke  James'  measures  for 
local  legislation. 

The  new  tribunal  was  to  consist  of  the  governor 
and  council  as  theretofore,  and  in  the  governor 
was  vested  power  to  appoint  a  chancellor  to  act  in 
his  stead.  This  court  formed  the  highest  tribunal 
in  the  province,  having  entire  jurisdiction  in  all 
equitable  matters;  an  appeal  from  which  lay 
directly  to  the  King  and  his  council. 

It  is  worthy  of  note  that  the  equity  practice  of 
to-day  has  reverted  to  that  of  the  early  English 
period;  it  being  now  continued  in  the  jurisdiction 
of  the  Supreme  Court,  or  other  courts  of  record. 


151 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 


JURISDICTION  IN  EQUITY. 

A  practice  peculiar  to  courts  of  equity  during 
the  early  English  period  was  their  authority  to 
grant  divorce  for  adultery,  which  was  a  practice 
unknown  to  the  English  courts  of  equity.  The 
reason  ascribed  for  this  unusual  custom  is  that  the 
practice  was  in  vogue  among  the  Dutch ;  the  Court 
of  Burgomasters  and  Schepens  had  granted  di- 
vorces on  this  ground.  When  an  action  was  brought 
in  1671,  for  divorce  for  adultery,  the  English  court 
held  that  it  had  no  jurisdiction.  From  this  rule  an 
appeal  was  taken  to  the  governor,  who  held  that 
since  the  practice  had  been  prevalent  among  the 
Dutch,  it  was  the  common  law  of  the  colony,  and 
therefore  the  court  had  jurisdiction,  and  he  ordered 
it  to  take  cognizance  and  proof  of  adultery  at  its 
next  sitting.  Upon  the  re-establishment  of  the 
court  in  1683,  to  conform  to  the  High  Court  of 
Chancery  in  England,  this  power  of  granting 
divorces  was  abrogated.  From  1683  to  1691,  the 
court  continued  as  it  had  been  previous  to  that  time. 

Following  the  legislative  establishment  of  the 
court,  Dongan  summoned  a  session  for  the  16th 
day  of  February,  1683;  thereafter  the  terms  of 
court  were  set  for  the  first  Thursday  of  each  month. 

The  court  continued  to  exercise  equity  jurisdic- 
tion until  all  the  courts  were  abolished,  upon  the 
succession  to  the  throne  of  the  Duke  of  York;  the 
governor  and  council  thereafter  continued  to  act 

152 


ESTABLISHMENT  OF  A  COURT  OF  CHANCERY. 

as  chancellor  and  court  of  equity,  as  they  were 
accustomed  to  do  before  Dongan's  time. 

DURATION  OF  THE  HIGH  COURT  OF  CHANCERY. 

When  the  Assembly  of  1691  passed  its  act  to 
establish  courts  of  justice,  provision  was  made  for 
a  High  Court  of  Chancery  for  the  whole  prov- 
ince, composed  as  was  Dongan's  court  and  limited 
in  the  original  act  to  two  years. 

Similarly  to  the  Supreme  Court,  it  was  con- 
tinued from  year  to  year  by  separate  acts  until 
April,  1698,  when  the  term  of  its  existence  ceased 
entirely,  and  although  Bellamont  provided  in  his 
ordinance  for  re-establishing  the  High  Court  of 
Chancery,  such  a  court  does  not  appear  to  have 
been  erected. 

The  next  mention  made  of  this  court  is  to  be 
found  in  a  letter  of  Lieutenant-Governor  Nanfan, 
addressed  to  the  Lords  of  Trade  in  England,  and 
advising  them  of  the  non-existence  of  such  a  court 
in  the  colony,  and  the  necessity  for  one.  He  urged 
on  their  attention,  that  under  the  law,  to  constitute 
a  full  bench,  five  of  the  council  were  required  to  sit 
with  the  governor,  and  that  they  very  seldom  at- 
tended. 

ESTABLISHMENT  OF  A  COURT   OF   CHANCERY. 

In  answer  to  this  the  Lords  of  Trade  wrote  Nan- 
fan  that  he  should  establish  such  a  court,  to  be  com- 
posed of  the  governor  and  council,  or  any  two  of 

153 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

them.  The  lieutenant-governor  issued  an  ordinance 
to  that  effect,  and  convoked  a  session  of  court  for 
the  second  day  of  April,  1701,  and  set  the  first 
Thursday  of  each  month  for  the  term  of  court. 

From  the  date  of  its  establishment,  the  strongest 
opposition  was  manifested  by  the  colonists  to  a 
Court  of  Chancery;  and  the  right  of  the  Crown  to 
establish  an  equity  court  in  the  colony,  when  it  had 
no  such  power  in  England,  without  the  consent  of 
Parliament,  was  challenged. 

The  opposition  was  not  confined  to  the  Court  of 
Chancery,  which  the  people  required,  but  to  the 
constitutionality  of  its  creation.  The  popular  de- 
mand was  for  a  court  created  by  act  of  legislature, 
and  not  by  the  arbitrary  act  of  the  King  of  Eng- 
land. Petitions  and  memorials  were  addressed  to 
the  Assembly,  which  claimed  that  the  rights  of  the 
inhabitants  were  imperilled,  that  the  fees  of  the 
court  were  exorbitant,  and  asking  that  body  to 
revise  the  act  of  establishment  and  conform  the 
court  to  the  needs  and  wishes  of  the  people. 

OPPOSITION   TO   COURT   OF   CHANCERY. 

When  Lord  Cornbury  arrived,  the  opposition 
to  the  court  was  at  the  highest  point,  and  he 
deemed  it  advisable  to  suspend  its  sessions  tempor- 
arily, and  hold  an  investigation.  A  commission 
was  appointed  to  investigate  the  facts,  and  report 
thereon;  the  result  of  this  was  that  the  court  was 
somewhat  revised,  the  fees  materially  lowered,  and 

154 


OPPOSITION  TO  COURT  OF  CHANCERY. 

an  ordinance  issued  to  convene  a  court  on  Novem- 
ber 7th,  1704.  From  thence  to  the  Revolutionary 
War,  the  Court  of  Chancery  continued  its  exist- 
ence. 

When  Lord  Lovelace  came  out  as  governor,  in 
1708,  there  was  a  new  outbreak  of  hostility  towards 
the  Court  of  Chancery.  In  that  year  the  Assembly 
passed  a  resolution  claiming  that  the  erection  of  a 
court  Avithout  the  consent  of  the  Assembly  was  an 
abuse  of  the  royal  power  and  tended  to  jeopardize 
the  liberty  and  property  of  the  people.  The  effect 
of  this  was,  that  after  the  governor's  death,  and 
during  the  term  of  Ingoldesby,  no  court  was  held 
in  this  colony.  Upon  Governor  Hunter's  arrival, 
in  1710,  it  was  re-established,  and  he  took  upon 
himself  the  duties  of  chancellor. 

New  opposition  was  brought  to  bear  upon  this 
action  of  the  governor,  and  a  memorial  sent  to  the 
Lords  of  Trade,  in  which  the  colonists  set  forth 
their  feelings  concerning  the  establishment  of  such 
a  court  without  the  consent  of  the  Assembly;  but 
the  Lords  of  Trade  answered  that  the  Assembly,  in 
addressing  such  a  petition  to  them,  had  acted  impu- 
dently, and  claimed  that  the  Crown  had  a  right  to 
erect  any  court  that  it  deemed  essential  to  the  col- 
ony's well-being.  This  court  was  therefore  con- 
tinued for  sixteen  years,  without  interruption,  al- 
though the  colonists  showed  their  hostility  to  it 
whenever  opportunity  offered. 


155 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 


GROUNDS  OF  OPPOSITION. 

One  of  the  reasons  assigned  for  the  spirited  op- 
position to  such  a  court  for  the  province  of  New- 
York  was  undoubtedly  the  following:  The  colo- 
nists had  been  granted  large  tracts  of  land;  taxes 
were  greatly  in  arrears  and  had  accumulated  to  such 
an  extent,  that  any  action  brought  against  the  land- 
lords for  their  collection  at  this  time,  must  neces- 
sarily involve  a  large  amount;  the  colonists  knew 
that  payment  of  unpaid  taxes  and  quitrents  could 
be  compelled  only  through  a  Court  of  Chancery, 
and  hence  their  opposition  to  it. 

The  strongest  opposition  to  the  Court  of 
Chancery  was  encountered  from  the  great  land- 
holders. During  the  period  of  dissension,  Fletcher, 
Hunter's  predecessor  in  the  office  of  governor,  saw 
the  unpopularity  of  this  court,  and  refused  to  pre- 
side as  chancellor  unless  the  matter  came  before 
him  on  direct  appeal  or  writ  of  error.  Governor 
Hunter  repeatedly  sat  as  chancellolr,  as  did  his  suc- 
cessor Burnett,  who  is  credited  with  having 
despatched  the  greatest  amount  of  business  as  chan- 
cellor up  to  this  time. 

ARBITRARY  ACTION  OF  PHILLIPSE. 

We  are  now  brought  to  the  year  1727,  which  is 
an  important  period  in  the  history  of  the  Court  of 
Chancery.    The  opposition  to  this  court  was  again 

156 


NATURE  OF  GRIEVANCE. 

revived.  Frederick  Phillipse,  a  great  landholder 
and  speaker  of  the  Assembly,  had  been  defeated  in 
a  case  brought  by  him  into  the  Court  of  Chancery, 
wherein  Burnett  sat  as  chancellor.  Claiming  that 
the  adverse  judgment  was  due  to  partiality  on  the 
part  of  the  chancellor,  Philhpse,  as  speaker  of  the 
Assembly,  caused  the  latter  to  pass  a  bill  of  griev- 
ances, during  the  last  hour  of  the  session. 

This  ill-considered  conduct  on  the  part  of  the 
Assembly  enraged  the  governor,  who  claimed  that 
the  members  had  been  inveigled  into  a  highhanded 
act  without  just  grounds  therefor. 

If  the  Assembly  had  acted  in  good  faith,  they 
would  have  passed  an  act  or  resolution  calculated 
to  remedy  some  of  the  defects,  and  not  have  re- 
sorted to  the  high  tempered  inpulse  of  the  moment. 

NATURE  OF  GRIEVANCE. 

The  gist  of  the  grievance  was  that  the  erection  in 
the  colony  of  a  Court  of  Chancery  without  the  con- 
sent of  the  Assembly  was  unwarranted  and  con- 
trary to  the  laws  of  England,  and  was  an  oppres- 
sion of  the  subjects  and  of  pernicious  consequence 
to  their  liberties  and  properties. 

It  also  resolved  that  at  the  next  meeting  of  the 
Assembly,  an  act  would  be  prepared  and  passed, 
declaring  all  orders  and  proceedings  of  the  Court 
so  erected,  to  be  illegal  and  of  no  effect,  and  the 
question  would  be  debated  as  to  whether  or  not  the 
Assembly  should  establish  a  Court  of  Equity  or 
Chancery  in  the  colon}^ 

157 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK, 


REVISION  OF  COURT. 

The  effect  of  this  action  was  to  bring  the  Court 
of  Chancery  into  great  disrepute  in  the  colony,  an 
effect  contemplated  by  Phillipse,  and  the  appoint- 
ment of  a  committee  to  revise  the  acts  regulating 
the  court ;  many  abuses  of  the  court  were  abolished, 
and  the  fees  so  considerably  reduced  that  no  lawyer 
of  high  standing  in  the  colony  would  find  practice 
in  that  court  sufficiently  lucrative  to  undertake  an 
action  in  equity. 

When  Montgomery  assumed  the  office  of  gover- 
nor in  1728,  he  declined  to  act  as  chancellor  on  the 
ground  of  his  inability  to  competently  discharge 
the  duties  of  the  office ;  when  this  demureness  of  the 
governor  came  to  the  ears  of  the  Lords  of  Trade  in 
England,  their  orders  were  made  imperative,  and 
His  Excellency  reluctantly  acquiesced. 

AGITATION    AGAINST    COURT. 

The  ever  growing  opposition  to  the  court  reached 
its  climax  in  1T35,  in  the  form  of  another  petition 
to  the  GeneralAssembly,  setting  forth  the  danger 
and  insecurity  of  a  Court  of  Chancery.  The  hue 
and  cry  against  the  court  was  raised  and  stimulated 
by  the  two  most  popular  attorneys  of  the  day, 
Alexander  and  Smith. 

Ignoring  numerous  petitions  for  its  dissolution, 
which  were  presented  to  the  Assembly  and  himself, 

158 


PETITION    TO   GOVERNOR    CLARKE. 

the  governor  refused  to  act,  and  in  November  of 
that  year,  the  Assembly  passed  a  resolution  that 
"The  Court  of  Chancery  in  this  province,  in  the 
hands  or  under  the  exercise  of  the  governor,  with- 
out consent  in  General  Assembly,  is  contrary  to  the 
law,  unwarrantable,  and  of  dangerous  consequence 
to  the  liberties  and  properties  of  the  people." 

ACTION   OF   BENCH   xVND   BAR. 

At  this  crisis  of  law  and  order,  when  justice 
seemed  to  be  running  amuck,  the  bench  and  bar 
took  a  hand  in  matters;  they  saw  the  disturbed 
state  of  things  within  the  colony,  and  realizing  that 
equity  jurisdiction  must  be  vested  in  some  hands, 
authority  to  hear  equity  business  was  conceded  by 
them  as  the  province  of  the  judges  of  the  Supreme 
Court.  This  right  or  remedy  was  to  be  enforced 
under  the  guise  of  exchequer  business.  The  judges 
announced  that  they  would  hear  all  complaints  and 
bills  in  equity,  but  Rip  Van  Dam,  at  that  time 
governor,  was  ordered  to  act  as  chancellor  until 
the  arrival  of  the  new  governor,  Cosby. 

PETITION   TO   GOVERNOR   CLARKE. 

Cosby  and  his  successor  Clarke  acted  as  chancel- 
lors, and  during  the  latter's  administration,  a  peti- 
tion was  addressed  to  liim  in  the  following  words: 
"The  settling  and  establishing  of  a  general  juris- 
diction for  a  due  administration  of  justice  is 
necessary  in  every  country,  and  we  conceive  they 

159 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

ought  to  be  settled  and  established  by  acts  of  the 
whole  Legislature,  and  their  several  jurisdictions 
and  powers  by  that  authority  remitted  and  ap- 
pointed, especially  courts  that  are  to  take  cogniz- 
ance of  matters  in  a  court  of  equity.  This  has  been 
the  constant  practice  in  England,  when  new  courts 
were  to  be  erected,  or  old  ones  to  be  abolished  or 
altered ;  and  the  several  kings  of  England,  in  whose 
reigns  those  acts  were  made,  never  conceived  that 
the  settling,  erecting,  or  abolishing  courts,  by  acts 
of  the  Legislature,  had  any  tendency  to  destroy  or 
in  the  least  to  diminish  their  just  and  legal  preroga- 
tives. It  was  the  method  in  use  here,  both  before 
and  since  the  revolution,  and  particularly  recom- 
mended to  the  Assembly  to  be  done  in  that  manner, 
by  a  message  from  Governor  Sloughter  and  coun- 
cil, on  the  15th  day  of  April,  1691.  He  was  the 
first  governor  since  the  revolution,  and  the  gover- 
nors that  since  that  time  assented  to  those  acts,  we 
suppose,  never  in  the  least  imagined  that  they  were 
giving  up  prerogatives  of  their  masters  when  they 
gave  that  assent;  nor  did  we  ever  learn  that  they 
were  censured  for  so  doing.  On  the  contrary,  the 
constant  instructions  that  have  from  time  to  time 
been  given  to  the  governors  of  this  province  seem 
clearly  to  point  out  the  doing  of  it  by  acts  of  the 
Legislature,  and  not  otherwise,  as  may  be  gathered 
from  the  instructions  for  the  erecting  of  a  court 
for  the  determining  of  small  causes,  by  which  there 
are  positive  directions  given  to  the  governors  to 

160 


PETITION    TO   GOVERNOR   CLARKE. 

recommend  it  to  the  Assembly  that  a  law  should 
be  passed  for  that  purpose;  but  notwithstanding 
these  directions  given  in  exi)ress  and  direct  terms, 
the  governors  never  would  apply  for  such  an  act, 
but  erected  that  court  by  an  ordinance  of  them- 
selves and  council,  as  they  did  the  Court  of 
Chancery,  which  had  before  that  time  been  erected 
by  acts  of  the  Legislature  in  another  manner.  They 
could  not  be  ignorant  of  what  dissatisfaction  the 
erecting  of  a  Court  of  Chancery  in  that  manner 
gave  the  generality  of  the  people.  This  was  very 
manifest  by  the  resolves  of  the  General  Assembly, 
at  the  time  of  its  first  being  so  erected,  and  often 
since  declaring  the  illegality  of  such  a  proceeding. 
And  though  these  resolves  have  been,  as  often  as 
made,  treated  by  the  governors  with  an  unreason- 
able disregard  and  contempt  of  them,  yet  to  men  of 
prudence  they  might  have  been  effectual  to  have 
made  them  decline  persisting  in  a  procedure  so 
illegal,  and  so  generally  dissatisfactory;  and  when 
(as  they  imagined  it)  proved  of  no  use  to  the  public 
or  benefit  to  themselves.  For  a  few  of  them  had 
talents  equal  to  the  task  of  a  chancellor,  which  they 
had  undertaken  to  perform,  so  it  was  executed 
accordingly.  Some  of  them  being  willing  to  hold 
such  a  court,  others  not,  accordingly  as  they  hap- 
pened to  be  influenced  by  those  above  them.  So 
that  were  it  really  established  in  the  most  legal 
manner  (as  it  was  not),  yet  being  in  the  hands  of 
a  person  not  compellable  to  do  his  duty,  it  was  so 

161 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

managed  that  the  extraordinary  delays  and  fruit- 
less expense  attending  it,  rendered  it  not  only  use- 
less, but  a  grievance  to  the  inhabitants,  especially 
those  who  were  so  unfortunate  as  to  be  concerned 
in  it;  which  we  hope  you  think  with  us,  that  it  is 
high  time  should  be  redressed.  Your  Honor  well 
knows  that  the  establishing  that  court  in  the 
manner  it  has  been  done  has  been  a  subject  of 
contention  between  the  governors  and  the  As- 
sembly; and  since  it  is  confessed,  by  all,  that  the 
establishment  both  of  that,  and  other  courts,  by  act 
of  the  Legislature,  is  indisputably  legal  and  gives 
them  the  most  incontrovertible  authority;  and  if 
unquestionably  legal,  what  is  so  cannot  be  destruc- 
tive of  His  Majesty's  prerogative.  We  therefore 
hope  you  will  make  no  scruples  of  assenting  to 
this  bill,  to  put  an  end  to  the  contention,  that  has 
not  been,  nor  will  be,  while  it  continues,  beneficial 
to  His  Majesty's  service." 

SUCCESSIVE   CHANCELLORS. 

Governor  Clinton,  who  succeeded  Clarke,  acted 
as  chancellor,  as  did  Chief -Justice  Delancey  when 
appointed  lieutenant-governor  of  the  province.  In 
1753  Hardy  was  the  governor.  He  was  not  a 
lawyer,  and  experienced  much  embarrassment  in 
hearing  and  determining  equity  actions ;  his  bravest 
attempt  to  do  so  only  carried  him  into  deep  water, 
and  at  the  next  trial  he  asked  three  of  the  judges 
of  the  Supreme  Court  to  partially  relieve  him  of 
his  unsuitable  duties. 

162 


LORD  DUNMORE. 


DUNMORE  S  DILEMMA. 


In  1770,  during  Lord  Dunmore's  administration 
as  governor,  he  directed  the  attorney-general  to 
bring  an  action  in  chancer}^  against  Lieutenant- 
Governor  Golden,  his  predecessor,  for  certain 
moneys  to  which  he  laid  claim.  The  case  was  to  be 
brought  before  the  Court  of  Chancery,  whereof 
the  governor  himself  was  chancellor ;  notwithstand- 
ing his  interest  in  the  matter  at  bar,  the  governor 
presided  in  person  at  the  trial,  confident  in  the  recti- 
tude of  his  judgment;  Colden  was  represented  by 
James  Duane,  as  counsel,  who  later  became  mayor 
of  the  city  of  New  York. 

Duane  argued  the  case  ably,  and  must  have  con- 
vinced Dunmore  that  he  had  absolutely  no  case. 
For  a  time  the  latter  reserved  decision,  and  was 
then  diffident  about  making  his  verdict  public,  for 
he  had  originally  commenced  the  action  in  the  name 
of  the  Crown,  thus  flimsily  hiding  his  own  identity 
behind  the  royal  name.  Here  were  the  two  horns 
of  a  dilemma:  Should  he  decide  against  Colden, 
the  matter  would  be  appealed  to  England;  all 
prospect  of  obtaining  the  money  would  be  relin- 
quished to  the  Crown,  in  whose  name  the  action  had 
been  brought;  and  if  his  decision  were  favorable  to 
himself,  the  charge  of  partiality  and  self-seeking 
would  be  imputable  to  his  judgment. 

He  was  rescued  from  this  predicament  by  being 
transferred  to  the  governorship  of  Virginia,  and 

163 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

Tryon  succeeded  to  the  office  made  vacant  in  New 
York. 

MASTER  OF  THE  ROLLS. 

In  1774  Tryon  appointed  James  Jauncey  mas- 
ter of  the  rolls,  with  jurisdiction  over  all  cases  in 
equity  and  powers  generally  possessed  by  the 
master  of  the  rolls  in  England. 

CHARACTER  OF  THE   CHANCELLORS. 

It  was  a  standing  grievance  of  the  colonists,  in 
their  complaints  to  England,  that  most  of  the  gov- 
ernors who  acted  as  chancellors  were  unfit  to  hold 
that  office ;  that  their  opinions  were  those  of  laymen, 
who  had  not  been  bred  to  the  law.  This  was  indeed 
undeniable,  since  we  have  the  confessions  of  some 
of  the  governors,  who  were  more  honest  than  am- 
bitious, and  who  refused  to  act  as  chancellors,  from 
these  conscientious  motives. 

On  the  contrary  some  few  had  most  ably  and 
honorably  risen  to  the  high  claims  of  the  office  on 
their  ability  and  conduct.  Among  those  who  were 
called  to  the  chancellorship  at  a  very  critical 
period,  special  mention  is  due  to  Clarke,  who  came 
into  office  just  after  the  death  of  Cosby,  when  all 
the  courts  were  practically  at  a  standstill,  and  by 
tact  and  good  management  averted  disorder,  and 
restored  to  the  machinery  of  the  law  its  proper 
functions. 

For  lack  of  records  of  the  Court  of  Chancery, 
we  are  unable  to  form  a  proper  conception  of  the 

164 


CHARACTER  OF  THE   CHANCELLORS. 

code  of  procedure  that  obtained  within  this  court. 
It  was  only  after  Tryon  had  appointed  Jauncey 
master  of  the  rolls,  that  a  record  of  the  Court  of 
Chancery  was  kept. 

COURT   MINUTES. 

The  minutes  are  dated  from  April  5th,  1770,  to 
January  9th,  1776.  In  these  minutes  there  is  but 
one  written  opinion,  handed  down  by  Governor 
Tryon,  in  the  case  of  the  Reverend  Joshua  Bloomer 
vs.  Robert  Hinchman  and  Phillip  Edsal.  The  last 
entry  in  the  book,  January  9th,  1776,  concerned  the 
appointment  of  guardians  for  two  infants. 


165 


CHAPTER  X. 


SURROGATE  AND  PROBATE  COURT. 


Dutch  Period — Orphan  Masters — Probate  of 
Wills  —  Further  Enactments  —  Probate 
Procedure — Origin  of  Term  ^^Surrogate^' — 
Jurisdiction  of  Prerogative  Court  —  The 
Court  of  Probates. 

dutch  period. 

Among  the  Dutch  was  a  court  that  corresponded 
to  a  Surrogate's  and  Orphan  Court.  This  was  the 
natural  outgrowth  of  the  pressing  business  which 
necessitated  a  court  in  the  nature  of  an  overseer 
and  guardian  for  the  helpless  and  afflicted.  This 
branch  of  chancery,  which  entertained  the  probate 
of  wills,  and  the  administration  of  estates,  had  an 
earlier  existence  than  the  Court  of  Chancery  itself. 

We  find  that  the  College  of  Nineteen,  in  its 
charter  of  1640,  by  virtue  of  which  it  established 
courts  in  New  Amsterdam,  also  ordered  that  the 
director-general  and  the  council  of  New  Nether- 
lands should,  among  their  other  duties,  assume  the 
functions  and  jurisdiction  of  a  Surrogate's  and 
Orphan  Court. 

During  the  administration  of  Governor   Stuy- 

167 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

vesant,  when  the  Court  of  Burgomasters  and 
Schepens  achieved  such  prominence,  it  acted  as  a 
probate  court,  took  proof  of  wills,  and  undertook 
the  control  and  management  of  the  estates  of 
widows  and  orphans.  It  continued  to  perform 
these  duties  for  a  period  of  about  fifteen  years. 

ORPHAN    MASTERS. 

In  the  year  1655,  as  already  related  in  a  previous 
section  of  this  work,  an  Indian  massacre  of  the 
white  settlers  left  so  great  a  number  of  widows  and 
orphans  that  the  governor  was  under  the  necessity 
of  appointing  three  special  orphan  masters  to 
transact  the  unusual  amount  of  business. 

After  this  extraordinary  condition  of  probate 
affairs  had  been  properly  adjusted,  two  masters 
were  found  sufficient  to  attend  to  the  regular  busi- 
ness of  this  court,  and  they  continued  in  the  per- 
formance of  their  functions  as  probate  masters 
until  the  English  occupation. 

PROBATE  OF  WILLS. 

The  Duke's  Laws  made  ample  provision  for  the 
care  and  management  of  intestates'  property  and 
the  procedure  necessary  to  the  proof  of  testa- 
mentary instruments.  By  a  special  jurisdictional 
clause  contained  in  the  Duke's  Laws,  the  Court  of 
Sessions  in  each  of  the  three  ridings  was  empowered 
to  act  as  a  Court  of  Probates,  and  later  like  juris- 
diction was  conferred  on  the  Mayor's  Court. 

168 


PROBATE  OF  WILLS. 

The  laws  provided  that  wills  involving  disposi- 
tions of  more  than  one  hundred  pounds  should  be 
filed  in  the  office  of  the  governor's  secretary  at  New 
York,  who  was  also  secretary  of  the  province;  this 
practice  gradually  induced  the  governor  of  the 
colony  to  take  upon  himself  the  duties  of  a  probate 
judge. 

Acting  under  this  assumed  jurisdiction,  Gover- 
nor IVicoUs  granted  some  letters  of  administration, 
and  performed  other  duties  pertaining  to  a  surro- 
gate, in  accordance  with  his  prerogative  right.  This 
practice  was  continued  to  such  an  extent,  that  in 
Dongan's  time,  it  liad  become  the  settled  practice 
to  have  the  proof  of  all  wills  read  before  the  gover- 
nor. When  Sloughter  became  governor,  all  papers 
filed  with,  or  issuing  from,  the  surrogate's  office, 
were  under  a  special  seal,  for  that  purpose  estab- 
lished, and  it  became  customary  to  refer  to  the  office 
as  the  "Prerogative"  Court. 

FURTHER   ENACTMENTS. 

,  Certain  acts  relating  to  the  proof  of  wills  and 
the  management  of  intestate  property  were  passed 
by  the  Assembly  in  1692.  It  was  therein  provided 
that  two  freeholders  should  be  appointed  by  the 
governor  in  each  town,  whose  duty  would  be  the 
care  of  intestates'  property.  By  a  reservation  of 
power  it  was  provided  that  the  proof  of  all  wills 
should  be  read  before  the  governor,  and  he  only 
had  capacity  to  grant  letters  of  administration.    It 

169 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

further  authorized  the  governor  to  delegate  some 
person  to  act  in  his  name  and  stead,  in  granting 
administration  papers,  but  effect  could  be  given 
to  this  power  of  appointment  only  by  the  seal  of 
the  "Prerogative"  Office. 

PROBATE  PROCEDURE. 

All  records  of  wills,  and  all  papers  relating  to 
the  surrogate's  office  in  New  York,  and  its  immedi- 
ate vicinity,  were  required  to  be  recorded  at  New 
York.  In  the  localities  more  remote  from  New 
York,  from  which  it  would  be  inconvenient  for 
witnesses  to  attend,  delegates  were  appointed  by 
the  governor,  and  the  Court  of  Common  Pleas  in 
each  county  was  given  jurisdiction  in  the  probate 
of  wills,  and  the  matter  of  intestates'  property. 
The  governor  appointed  a  representative  to  act  for 
him  at  New  York,  and  this  was  the  first  establish- 
ment of  a  Prerogative  Court,  presided  over  by 
another  than  the  governor. 

ORIGIN  OF  THE  TERM  ''  SURROGATE.^^ 

As  above  stated,  the  governor  had  appointed 
delegates  in  all  the  localities  of  the  province,  and 
these  delegates,  in  conjunction  with  two  freeholders 
who  had  acted  previously,  came  to  be  known  as 
"surrogates,"  which  term  signifies  delegates.  From 
thence  to  the  present  time,  the  officers  who  suc- 
ceeded to  their  office  and  duties  have  been  referred 
to  as  surrogates. 

170 


NEW  COURT  OF  PROBATES. 


JURISDICTION  OF  PREROGATIVE  COURT. 

The  Prerogative  Court  of  New  York  enter- 
tained appellate  jurisdiction  in  probate  and 
intestate  matters,  over  all  the  Courts  of  Common 
Pleas  in  the  province,  and  could  review  the  deci- 
sions of  any  of  the  delegates  in  the  different  parts 
of  the  province. 

NEW  COURT  OF  PROBATES. 

In  1754,  a  special  judge  of  probates  was  ap- 
pointed, distinct  from  the  Prerogative  Office  which 
continued  its  separate  existence.  This  special 
judge  had  power  to  take  the  proof  of  wills  and 
grant  letters  testamentary,  and  of  administration. 
He  presided  over  a  tribunal  known  as  the  "Probate 
Court,"  while  the  Prerogative  Office,  its  predeces- 
sor, seems  to  have  been  continued  and  presided 
over  by  the  secretaries  of  the  province,  until  the 
Revolutionary  War.  The  practice  of  this  court 
was  much  similar  to  the  corresponding  court  in 
England. 


171 


CHAPTER  XL 


THE  COURT  OF  EXCHEQUER. 


Early  Exchequer  Business — Rip  Vam  Daivt's 
Case — Opposition  to  Court  of  Exchequer — 
Public  Debate  —  Intensity  of  Popular 
Feeling — Trial  of  Zenger. 

early  exchequer  business. 

The  first  mention  made  of  exchequer  business 
was  during  Dongan's  administration,  when  he 
estabhshed  an  ordinance  stating  that  he  would  hear 
all  exchequer  business  on  the  first  Monday  of  each 
month,  an  intendment  which  embraced  all  matters 
in  dispute  between  the  Crown  and  colonists,  as  to 
rents,  taxes,  revenues,  etc. 

The  act  establishing  courts  for  the  province, 
which  was  passed  in  1691,  gave  the  Supreme  Court 
jurisdiction  in  all  exchequer  matters,  but  it  does 
not  appear  that  a  separate  court  of  exchequer  juris- 
diction was  established.  Exchequer  business  was 
heard  at  the  regular  term  of  the  Supreme  Court, 
but  business  grew  to  such  an  extent  that  it  could 
not  well  be  handled  at  that  time. 

While  Lieutenant-Governor  Nanfan  acted  as 
chief  officer  in  the  colony,  he  was  empowered  to 

173 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

erect  a  separate  Court  of  Exchequer;  he  accord- 
ingly issued  an  ordinance  recommending  its  estab- 
hshment,  the  business  of  the  colony  being  deemed 
sufficient  to  warrant  its  erection;  there  is,  however, 
no  record  that  such  a  court  was  ever  established. 
On  the  other  hand  we  find  that  the  chief -justice  at 
that  time  continued  to  hear  exchequer  business  at 
the  regular  terms  of  the  Supreme  Court,  but  when 
the  business  of  the  latter  consumed  the  full  term, 
exchequer  matters  were  taken  up  after  the  regular 
business  of  the  Supreme  Court  was  terminated. 

RIP  VAN  DAM^S   CASE. 

We  have  no  records  of  exchequer  business  pre- 
vious to  the  year  1733,  or  thereabouts.  It  was  then 
that  the  attorney-general  of  the  province  was 
directed  by  Governor  Cosby  to  bring  an  action  in 
the  exchequer  part  of  the  Supreme  Court  against 
Rip  Van  Dam,  as  elsewhere  stated,  for  half  of  the 
sums  of  money  obtained  by  the  latter  during  the 
interval  between  Montgomery's  departure  from  the 
province  and  Cosby's  arrival,  during  which  time 
Van  Dam  had  acted  as  governor  of  the  province. 

This  matter  involved  the  question  of  accounts, 
and  was  thus  properly  within  the  jurisdiction  of 
the  Court  of  Chancery,  but  the  governor  was 
unwilling  to  bring  a  case  into  the  court  of  which 
he  was  chancellor;  his  only  alternative  was  to  have 
the  action  brought  by  the  attorney-general  before 
the  judges  of  the  Supreme  Court,  on  the  exchequer 

174 


RIP  VAN  DAM  S  CASE. 

side.  This  aroused  much  popular  feeling  against 
the  prerogative  right  of  establishing  Courts  of 
Equity  in  the  province  without  legislative  ap- 
proval. 

On  the  score  of  this  insurrectionary  agitation  on 
the  part  of  the  populace,  something  has  been  said 
in  our  brief  history  of  the  Court  of  Chancery,  and 
the  same  spirit  of  discontent  now  prevailed  with 
respect  to  the  Court  of  Exchequer. 

Van  Dam  retained  the  services  of  Alexander  and 
Smith,  two  of  the  most  prominent  attorneys  of  the 
day,  to  defend  his  interests.  These  attorneys  de- 
murred to  the  jurisdiction  of  the  court,  on  the 
ground  that  the  Crown  had  no  right  to  establish  a 
Court  of  Equity  in  the  province ;  this  demurrer  was 
overruled  by  Judges  Delancey  and  Phillipse,  but 
Chief -Justice  Morris  did  not  concur,  and  wrote  a 
dissenting  opinion.  As  told  in  our  history  of  the 
Supreme  Court,  this  was  one  of  the  causes  of  the 
removal  of  Morris  from  his  office,  and  the  appoint- 
ment of  Delancey  in  his  stead. 

The  decision  of  the  judges,  when  pronounced 
in  court  before  a  great  crowd,  was  received  with 
much  indignation;  but  the  opinion  of  Morris  was 
published  broadcast  in  the  newspapers,  thus  giving 
great  offence  to  the  governor ;  and  INIorris,  who  had 
for  twenty  years  acted  as  chief -justice,  was  re- 
moved for  it.  This  increased  the  excitement  in  the 
colony,  and  divided  the  inhabitants  into  two  parties. 
One  party  sided  with  the  governor,  and  maintained 

175 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

that  the  court  had  equity  jurisdiction;  the  other 
adhered  to  Van  Dam,  and  denied  that  the  court 
possessed  such  jurisdiction.  The  latter  part}^  com- 
prised the  great  mass  of  common  people,  whereas 
the  friends  of  Cosby  were  the  aristocrats  of  the 
colony,  and  styled  the  "people  of  figure." 

OPPOSITION  TO  THE  COURT  OF  EXCHEQUER. 

The  jurisdiction  of  the  court  in  exchequer  mat- 
ters was  brought  to  the  attention  of  the  General 
Assembly  at  its  next  session,  and  petitions  sub- 
mitted for  the  repeal  of  the  Court  of  Exchequer, 
as  a  branch  of  the  Supreme  Court,  and  the  general 
re-establishment  of  courts  by  acts  of  the  Assembly, 
and  not  by  arbitrary  acts  of  the  Crown.  This 
measure  was  defeated  in  the  Assembly  by  the 
gubernatorial  majority,  but  so  intense  was  the 
opposition  that  the  governor  was  obliged  to  con- 
sent to  a  public  debate  of  the  question  before  the 
Assembly. 

PUBLIC  DEBATE. 

In  accordance  with  this  concession,  two  lawyers 
advocated  each  side  of  the  question  with  force  and 
abihty;  but  in  their  zeal  for  their  cause,  they  had 
marshalled  such  a  maze  of  learning  and  sophistry, 
replete  with  astute  constitutional  arguments  and 
philosophical  dissertations,  that  they  overshot  their 
mark,  and  nothing  was  achieved. 

176 


TRIAL  OF  ZENGER. 


INTENSITY    OF    POPULAR    FEELING. 

The  feeling  in  the  colony  was  at  so  high  a  pitch 
that  it  did  not  end  here;  the  newspapers  took  a 
partisan  stand  in  the  matter,  which  occasioned  still 
more  trouble.  The  publisher  of  The  New  York 
Weekly  Journal  sided  with  Van  Dam,  and  in  four 
numbers  of  this  paper  published  matter  inimical 
to  the  interests  of  the  governor  and  his  party;  in 
fact  so  offensive  was  the  matter  that  the  governor, 
by  special  ordinance,  caused  all  copies  of  the  paper 
to  be  publicly  burned,  and  Zenger,  the  publisher, 
was  arrested,  and  an  information  filed  against  him 
in  the  Supreme  Court  for  seditious  libel. 

TRIAL  OF  ZENGER. 

Attention  was  drawn  from  Van  Dam's  case  to 
this  new  matter  which  promised  to  be  more  readily 
settled  than  the  other.  Alexander  and  Smith,  who 
had  taken  the  popular  side  of  the  question  from  the 
beginning,  now  volunteered  to  defend  Zenger. 

Their  first  move  was  to  demur  to  the  commission 
of  the  judges  of  the  Supreme  Court;  but  its  juris- 
diction was  not  challenged.  The  counsel  for  the  de- 
fendant wisely  saw  that  an  attack  on  the  Supreme 
Court  which  had  been  established  for  so  many  years 
might  involve  endless  trouble.  The  demurrer  which 
called  into  question  the  commission  under  which 
the  judges  were  act;ing,  so  enraged  Delancey,  that 
he  caused  both  of  their  names  to  be  stricken  from 

177 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

the  roll  of  attorneys,  and  they  were  forthwith  dis- 
barred. 

Finally  a  Mr.  Hamilton,  a  prominent  lawyer  of 
Philadelphia,  championed  the  cause  of  Zenger. 
The  latter  was  tried  before  a  jury,  and  Hamilton 
interposed  a  defence  of  justification,  and  argued 
for  the  truth  of  the  statements  published.  The 
judge  refused  to  admit  the  evidence,  but  Hamilton 
contended  that  the  jury  was  sole  judge  of  both  the 
law  and  fact  in  a  libel  suit.  This  was  a  new  prin- 
ciple of  law,  and  established  a  precedent  in  advance 
of  England.  The  jury  retired  for  deliberation,  and 
contrary  to  the  judges'  charge,  returned  a  verdict 
of  not  guilty,  and  Zenger  was  thereupon  acquitted. 

This  was  a  great  triumph  for  the  Democratic 
party  of  the  colony,  and  Hamilton  was  made  much 
of,  and  hailed  as  a  hero.  This  put  an  end  to  Van 
Dam's  case,  and  no  more  business  was  brought  into 
the  Court  of  Exchequer  as  a  distinct  tribunal,  until 
the  Revolutionary  War. 


178 


CHAPTER  XII 


CRIMINAL  COURTS. 


E^vRLY  Criminal  Courts — Court  of  Oyer  and 
Terminer — Criminal  Court  in  New  York 
City — Procedure — Court  Obloquy — Leis- 
LER^s  Trial — Opposing  Factions — Influence 
AND  Effect  of  Zenger^s  Trial — Colonial 
Legislation — Jurisdictional  Act. 

early  criminal  courts. 

We  will  now  devote  some  space  to  a  short  review 
of  the  criminal  courts  of  the  province.  Under  the 
Duke's  Laws,  all  the  courts,  including  the  small 
town  courts,  had  both  criminal  and  civil  jurisdic- 
tion in  all  cases  except  capital  offences,  or  treason 
against  the  established  government.  In  the  latter 
case  NicoUs  was  empowered  by  the  Duke's  Laws 
to  issue  a  special  commission  of  Oyer  and  Terminer 
to  try  the  offender;  such  commission  was  to  be 
issued  only  upon  information  by  the  Court  of 
Sessions,  before  which  the  prisoner  had  been 
brought,  that  a  capital  offender  was  under  arrest, 
and  that  there  would  be  no  meeting  of  the  Court 
of  Assize,  which  had  jurisdiction  in  such  cases, 
within  a  period  of  two  months.     It  was  under 

179 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

these  conditions  only,  that  the  governor  was  em- 
powered to  appoint  a  commission  of  Oyer  and  Ter- 
miner. 

COURT  OF  OYER  AND  TERMINER. 

No  criminal  court  was  estabhshed  in  the  province 
of  New  York  until  the  arrival  of  Dongan  in  1683; 
the  act  of  that  year  relating  to  the  establishment  of 
courts  made  provision  for  a  Court  of  Oyer  and  Ter- 
miner and  General  Gaol  Delivery,  to  consist  of  one 
judge  and  four  justices  of  the  peace  especially 
commissioned  for  the  separate  terms  of  the  court. 
The  court  was  to  be  convened  by  the  governor  upon 
information  of  any  criminal  offence. 

In  1691,  when  the  entire  judiciary  was  re- organ- 
ized, the  Legislature  provided  that  a  court  bearing 
the  same  name  as  the  above  was  to  be  held  at  least 
once  a  year  in  each  circuit,  and  was  to  be  composed 
of  one  of  the  judges  of  the  Supreme  Court,  who 
was  especially  assigned  to  that  circuit,  and  com- 
missioned by  the  governor  and  council;  this  judge 
was  to  call  to  his  assistance  some  of  the  county 
judges  in  his  circuit. 

CRIMINAL  COURT  IN  NEW  YORK. 

In  New  York  City  proper,  the  mayor  and  four 
aldermen  were  authorized  to  sit  with  the  circuit 
judge,  instead  of  the  county  judge.  This  bench 
of  five  constituted  the  personnel  of  this  court,  which 
was  merely  the  criminal '  branch  of  the  Supreme 

180 


LEISTER  S  TRIAL. 

Court,  and  by  this  designation  it  was  known  until 
its  abolishment  in  1896. 

PROCEDURE. 

Prosecution  was  mainly  by  information  to  the 
Supreme  Court,  or  to  the  governor  and  his  council, 
and  seldom  by  grand  jury  indictment.  The  gov- 
ernor and  council  very  often  committed  a  prisoner 
under  their  warrant,  and  frequently  the  judge  com- 
missioned to  try  the  prisoner  was  a  member  of  the 
council;  this  equivocal  procedure  led  to  much  scan- 
dal, and  many  complaints  were  made  that  warrants 
were  at  times  issued  by  the  council,  after  the  grand 
jury's  refusal  to  indict. 

COURT  OBLOQUY. 

In  reviewing  the  history  of  the  Supreme  Court, 
it  must  be  admitted  that  it  left  an  unclean  record 
in  its  criminal  branch.  Two  important  cases  that 
were  tried  before  it  but  tend  to  confirm  this  belief; 
noticeably  the  almost  farcical  trial  of  Leisler  in 
1691. 

LEISLER^S   TRL\L. 

The  alleged  loyalists  managed  to  get  the  ear  of 
Governor  Sloughter  when  he  arrived,  and  per- 
suaded him  that  Leisler  was  guilty  of  treason 
against  the  government  for  his  own  private  gain; 
as  a  matter  of  fact,  Leisler's  action  was  consistent 
with  the  popular  feeling  of  the  day,  engendered 
by  the  disturbances  in  England.  The  governor, 
concurring  in  belief  with  Leisler's  accusers,   ap- 

181 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

pointed  a  special  commission  of  Oyer  and  Ter- 
miner, composed  of  Dudley,  Smith  and  Phillipse, 
all  three  of  whom,  subsequent  to  this  trial,  were 
appointed  judges  of  the  newly  erected  Supreme 
Court. 

Leisler  heard  the  charge,  but  refused  to  plead  on 
the  ground  that  a  fair  trial  was  not  to  be  had;  in 
fact,  contrary  to  the  principles  and  practices  of  the 
common  law  of  England,  no  jury  was  allowed  in 
the  case.  Leisler  was  condemned  to  be  hung,  and 
his  property  confiscated.  Before  he  or  his  friends 
had  an  opportunity  to  appeal  to  England,  sentence 
was  executed,  although  the  confiscated  land  was 
later  restored  to  the  family. 

OPPOSING  FACTIONS 

As  a  result  of  this  trial,  public  feeling  was 
stirred  up  to  a  high  pitch,  and  the  proceedings 
denounced  by  the  populace,  as  "Murder."  The 
direct  aftermath  of  this  illegal  and  vindictive  exe- 
cution was  the  formation  of  two  hostile  parties,  one 
in  sympathy  with  Leisler,  and  the  other  with  his 
accusers.  The  latter  faction  soon  incurred  the  dis- 
favor of  the  new  governor,  and  the  Leislerites  had 
the  satisfaction  of  seeing  Nicholas  Bayard,  chief 
among  the  prosecutors  of  Leisler,  indicted  for  high 
treason.  But  it  appears  that  Bayard  was  never 
executed. 

Noteworthy  in  connection  with  this  trial,  is  the 
circumstance  that  even  at  this  early  date,  a  person 

182 


COLONIAL   LEGISLATION. 

accused  of  a  felony  was  allowed  counsel  at  his  trial. 
This  practice  was  not  legalized  in  England  until 
about  one  hundred  years  after  Leisler's  case. 

INFLUENCE  AND  EFFECT  OF  ZENGER^S  TRIAL. 

The  second  of  the  trials  to  which  allusion  was 
above  made,  was  the  trial  of  Zenger,  who  had  been 
indicted  for  seditious  libel  in  1735.  A  sketch  of 
this  case  has  been  given  in  our  history  of  the  Ex- 
chequer Court,  where  mention  was  made  of  the  im- 
portant results  directly  due  to  this  case. 

The  most  important  ruling  in  this  case  estab- 
lished the  principle  that  in  a  case  of  libel  the  jury 
had  full  power  to  decide  both  the  law  and  the  fact 
in  the  case.  Zenger's  case  was  extensively  pub- 
lished in  England,  and  an  act  was  passed  by  Parlia- 
ment in  1792,  which  allowed  juries  to  give  final 
verdict  in  libel  cases.  Another  feature  of  the  case 
was  the  establishment  of  the  absolute  freedom  of 
the  press. 

The  history  of  the  criminal  branch  of  the  Su- 
preme Court  will  be  taken  up  more  fully  in  relat- 
ing its  existence  after  the  Revolutionary  War. 

COLONIAL   LEGISLATION. 

Some  legislation  relative  to  criminals,  enacted 
by  the  Assembly  during  the  colonial  period,  we 
deem  worthy  of  mention. 

On  October  4th,  1732,  an  act  "  For  the  speedy 
punishing  and  releasing  such  persons  from  impris- 
onment as  shall  commit  no  criminal  offences,"  was 

183 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

passed.  Under  this  act  a  person  charged  with  a 
petty  criminal  offence  was  to  be  kept  in  prison  no 
longer  than  forty-eight  hours;  if  by  that  time  the 
prisoner  could  not  furnish  bail  to  secure  his  attend- 
ance at  the  next  Court  of  Sessions,  a  justice  of  the 
peace  in  the  locality  where  the  offence  was  commit- 
ted, was  authorized  to  call  in  two  of  his  nearest 
associates,  and  bring  the  prisoner  to  immediate 
trial. 

Prior  to  the  passage  of  this  act,  a  prisoner  who 
was  unable  to  furnish  bail  was  remanded  to  jail 
until  the  next  meeting  of  the  Court  of  Sessions;  in 
this  way  a  man  sometimes  remained  in  prison  two 
or  three  months  before  his  case  came  to  trial. 

Further  legislation  passed  by  the  Assembly  prior 
to  the  Revolutionary  War,  relative  to  the  inferior 
courts,  always  tended  to  expedite  the  practice  of 
the  several  law  courts  of  the  colony,  with  a  view  to 
promoting  the  greatest  good  to  both  justice  and 
the  litigants. 

JURISDICTIONAL  ACT. 

On  December  16th,  1737,  "  An  act  for  establish- 
ing and  regulating  courts  to  determine  causes  of 
forty  shillings  and  under,  in  the  colony "  was 
passed. 

As  of  old  it  gave  the  justices  of  the  peace  for  the 
several  districts  or  counties  jurisdiction  over  all 
actions  involving  the  above  mentioned  amount ;  but 
the  act  goes  on  to  say,  that  whereas  a  summons  was 
to  be  served  on  a  defendant  two  days  previous  to 

184 


JURISDICTIONAL  ACT. 

his  appearance,  this  gave  warning  to  an  offender 
who,  hot  having  much  property,  was  able  to  remove 
into  some  other  part  of  the  country,  so  that  plain- 
tiff would  thereby  lose  just  debts. 

To  prevent  the  continuation  of  this  practice,  the 
Assembly  inserted  a  clause  in  the  act,  stating  that 
if  any  person  was  indebted  to  another  for  a  sum  up 
to  the  value  of  forty  shillings,  and  neglected  or  re- 
fused to  pay  such  debt,  the  plaintiff  was  to  go  to 
any  justice  of  the  peace,  and  having  shown  the  lat- 
ter, under  oath,  that  he  had  made  such  a  demand  on 
a  defendant  for  the  sum  due  him,  it  was  lawful  for 
such  justice  of  the  peace  to  issue  a  warrant,  ad- 
dressed to  the  constable  or  deputy-constable,  near- 
est to  the  defendant,  commanding  him  to  immedi- 
ately arrest  the  defendant,  and  bring  him  before 
the  justice  of  the  peace. 

The  justice  was  empowered  to  grant  bail  in  such 
a  case,  and  was  to  set  the  trial  over  for  a  specified 
date,  when  judgment  was  to  be  rendered. 

If  security  were  not  furnished  by  the  defendant 
for  his  appearance  at  the  trial,  the  justice  of  the 
peace  was  empowered  to  immediately  proceed  to 
try  and  finally  determine  the  case  in  a  summary 
way,  unless  either  party  required  a  jury  at  the  trial. 

This  act  also  provided  that  an  action  in  replevin 
could  thereafter  be  commenced  in  any  of  the  county 
Courts  of  Common  Pleas,  or  the  Mayor's  Court, 
where  the  amount  involved  did  not  exceed  the  sum 
of  forty  shillings. 

185 


CHAPTER  XIII. 


COURT  OF  ADMIRALTY. 


Origin — Temporary  Prize  Court  of  Admir- 
alty— Court  of  Admiralty  Duly  Consti- 
tuted— Attwood^  Special  Judge  of  Admir- 
alty —  Enlarged  Jurisdiction  —  Marine 
Commission — Conditions  in  the  Colony — 
Appellate  Jurisdiction. 

origin. 

The  origin  of  the  Court  of  Admiralty  can  be 
traced  back  to  the  time  of  the  Dutch  dominion ;  the 
Court  of  Schout  and  Burgomasters,  and  previous 
to  that,  the  Court  of  Director- General  and  Council, 
was  authorized  to  hear  and  determine  all  admiralty 
matters  that  might  be  brought  before  them. 

The  Dutch  were  very  well  acquainted  with  the 
maritime  law  of  that  period,  as  their  mother  coun- 
try was  at  that  time  a  great  sea  power ;  in  fact  Hol- 
land had  about  five  or  six  separate  colleges  of 
admiralty,  distributed  throughout  its  relatively 
small  country,  wherein  this  branch  of  law  was  sys- 
tematically taught  to  future  officers  of  the  navy 
and  judges  of  the  admiralty  courts. 

By  the  "Duke's  Laws,"  NicoUs  was  authorized  to 

187 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

erect  a  separate  Admiralty  Court,  and  accordingly 
he  granted  a  commission  to  Luke  Santon,  to  act  as 
judge  of  the  Court  of  Admiralty,  but  we  have  no 
record  showing  that  a  distinct  court  was  erected  by 
Nicolls ;  it  is  on  record,  however,  that  Santon  heard 
several  cases  pertaining  to  maritime  affairs,  in 
which  he  acted  as  sole  judge. 

The  Mayor's  Court,  as  established  by  the  charter 
granted  by  Andros  to  the  city  of  New  York  in 
1675,  was  given  jurisdiction  over  all  maritime  af- 
fairs, and  the  governor  was  also  empowered  to 
issue  special  commissions  to  hear  cases.  By  Don- 
gan's  commission,  he  was  authorized  to  establish  a 
separate  Admiralty  Court,  but  he  went  no  further 
than  to  appoint  one  judge  of  admiralty  to  hear  a 
few  cases. 

TEMPORARY  PRIZE  COURT  OF  ADMIRALTY. 

When  Leisler  took  forcible  possession  of  the 
government,  about  1690,  some  French  vessels 
that  had  been  captured  on  the  high  sea  were 
brought  into  the  port  of  New  York  as  prizes  of 
war,  for  England  was  then  at  war  with  France. 
It  was  therefore  necessary  that  a  Court  of  Ad- 
miralty should  take  cognizance  of  the  captures,  and 
render  judgment  as  to  their  disposition;  accord- 
ingly, Leisler  issued  a  commission  to  De  Lanoy  to 
act  as  judge  of  a  Court  of  Admiralty,  and  also 
appointed  eight  associates  to  aid  De  Lanoy  in  his 
duties;  six  of  this  number,  besides  De  Lanoy,  who 

188 


TEMPORARY  PRIZE  COURT  OF  ADMIRALTY. 

was  always  to  be  present,  were  necessary  to  consti- 
tute a  full  bench.  A  registrar  and  marshal  of  the 
court  were  also  appointed.  The  cour,t  continued  its 
session  for  five  days,  when  the  business  in  hand 
having  been  completed,  it  was  discontinued. 

COURT  OF  ADMIRALTY  DULY  CONSTITUTED. 

The  first  regular  Court  of  Admiralty  for  the 
province  was  erected  by  Governor  Fletcher,  who 
was  instructed  by  a  special  warrant  from  the  Lords 
of  Admiralty,  to  do  so.  The  governor  and  his 
council  appointed  William  Pinhorne  as  the  first 
judge  of  admiralty,  in  1696. 

Fletcher,  in  a  letter  to  the  Lords  of  Admiralty  in 
England,  stated  that  the  colony  of  New  York,  and 
in  fact  most  of  the  other  English  colonies  in  Amer- 
ica, held  regular  Admiralty  Courts  without  having 
been  erected  by  proper  commission.  He  also  pro- 
tested that,  though  the  King  gave  him  authority  to 
erect  a  Court  of  Admiralty,  yet  the  commission  he 
received  from  the  Lords  restrained  him  from  ap- 
pointing a  judge,  registrar,  and  marshal  of  such  a 
court,  which  officers  were  absolutely  necessary  to  its 
existence.  Accordingly,  on  the  29th  of  April,  1697, 
the  Lords  in  England  sent  a  special  commission  to 
the  province,  authorizing  the  governor  to  appoint 
William  Smith  as  judge  of  the  Court  of  Admiralty, 
John  Tudor  as  registrar,  and  James  Marshall  as 
marshal  of  the  court ;  it  also  named  James  Graham 
as  advocate-general  of  the  Court  of  Vice-Admir- 

189 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

alty  of  New  York,  Connecticut,  and  East  Jersey. 
The  commission  further  stated  that  in  case  of  the 
death  or  inabihty  of  any  of  the  above  mentioned 
officers  of  the  court,  the  governor  was  to  appoint 
others  in  their  place,  and  was  to  notify  the  Lords  of 
Trade  in  England  of  such  appointments,  for  the 
purposes  of  ratification  or  change. 

ATTWOOD^  SPECIAL  JUDGE  OF  ADMIRALTY. 

When  Lord  Bellamont  was  commissioned  as 
governor,  he  was  given  power  to  appoint  judges 
and  other  necessary  officers  for  this  court,  and  was 
to  submit  the  names  to  England  for  approval. 
When  Attwood  came  out  as  chief -justice  of  the 
Supreme  Court,  he  bore  a  commission  to  act  as 
judge  of  admiralty. 

Attwood  received  his  commission  as  special 
judge  in  admiralty,  because  the  Lords  had  been 
apprised  of  a  certain  case  which  was  tried  here  by 
a  Court  of  Admiralty,  of  whose  action  they  did 
not  approve.  When  Attwood  got  here,  he  found 
that  judgment  had  already  been  given,  and  as  there 
was  no  tribunal  in  the  colony  that  had  jurisdiction 
to  review  a  decision  of  the  Court  of  Admiralty,  he 
found  himself  in  a  dilemma. 

He  escaped  from  his  predicament  by  claiming 
that  as  the  matter  in  question  involved  the  property 
of  the  Crown,  the  exchequer  branch  of  the  Su- 
preme Court  had  cognizance  of  the  case.  Attwood, 
who  consulted  only  his  own  caprice,  proceeded  to 

190 


MARINE  COMMISSION. 

review  the  decision  of  the  Admiralty  Court,  and 
passed  judgment. 

ENLARGED  JURISDICTION. 

At  this  time  the  court  had  been  permanently 
established,  and  it  was  considered  advisable  that  the 
offices  of  advocate-general  of  the  court,  and  attor- 
ney-general of  the  province,  should  be  united. 
This  was  done  in  Lord  Cornbury's  time.  On  the 
13th  of  June,  1702,  he  appointed  John  Bridges  to 
act  as  the  judge. 

On  April  1st,  1703,  Roger  Mompesson  was  com- 
missioned from  England  to  act  as  the  judge  of  the 
Admiralty  Court  of  Massachusetts,  New  Hamp- 
shire, Connecticut,  Rhode  Island,  Pennsylvania, 
New  York,  and  New  Jersey. 

It  was  thought  that  one  court  and  one  set  of  offi- 
cers could  transact  all  the  admiralty  business  of  the 
provinces  mentioned,  but  this  extensive  jurisdiction 
was  later  reduced,  and  when,  in  1721,  Francis  Har- 
rison was  commissioned  to  act  as  judge,  his  juris- 
diction covered  only  New  York,  Connecticut,  and 
the  Jerseys.  The  next  judge  of  admiralty  of  whom 
we  have  mention  was  Lewis  INIorris,  who  was  com- 
missioned in  1738. 

MARINE  COMMISSION. 

On  November  5th,  1760,  a  special  commission 
was  issued  to  try  and  punish  all  crimes  committed 
on  the  high  seas.    It  was  composed  of  Lewis,  John 

191 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

Chambers,  Daniel  Horsmanden,  David  Jones, 
William  Smith,  John  Cruger,  Simon  Johnson,  and 
Robert  R.  Livingston. 

This  commission  continued  in  existence  until 
August  2nd,  1762,  when  Governor  Monchton  and 
his  council  appointed  Richard  Morris  to  act  as 
judge  and  to  hold  office  during  the  governor's 
pleasure. 

In  1763,  Richard  NichoUs  was  especially  ap- 
pointed by  the  High  Court  of  Admiralty  in  Eng- 
land, to  act  as  registrar  and  clerk  of  the  respective 
Courts  of  Vice- Admiralty  in  existence  in  New 
York,  Connecticut,  and  the  Jerseys.  From  that 
time  we  have  no  court  records. 

CONDITIONS  IN  THE  COLONY. 

When  Tryon  became  governor  of  the  province, 
he  was  requested  by  the  Lords  of  Trade  in  Eng- 
land to  report  to  them  concerning  conditions  in  the 
colony.  In  the  report  is  to  be  found  some  mention 
of  the  Courts  of  Admiralty,  and  we  note  that  Mor- 
ris and  Nicholls  still  held  their  offices  at  that  time; 
it  was  also  stated  in  the  report  that  the  conditions 
under  which  the  judges  and  other  court  officers  held 
office  was  by  commission  from  the  Crown,  and  that 
no  salary  was  granted  them;  that  the  court's  pro- 
cedure was  in  conformity  with  the  civil  law  of  Eng- 
land, and  by  that  time  had  assumed  cognizance  of 
practically  every  branch  of  the  trade  laws  then  ex- 
istent in  England. 

192 


APPEALS  FROM  x\DMIRALTY  COURTS. 


APPELLATE   JURISDICTION. 

Up  to  or  about  1763,  all  appeals  from  the  Courts 
of  Admiralty  within  the  colony  were  heard  by  the 
High  Court  of  Admiralty  in  England ;  but  in  that 
year  an  act  was  passed  by  Parliament  that  any  dis- 
putes arising  between  the  Crown  and  the  colonies 
relative  to  revenues  or  trade,  could  be  brought  to 
trial  in  any  court  of  record  or  Courts  of  Vice- 
Admiralty  in  the  province.  It  also  recommended 
that  a  High  Court  of  Admiralty  for  all  America 
be  established  to  hear  all  appeals  in  matters  relating 
to  maritime  affairs,  and  trade  in  general.  This 
court  was  finally  established  in  1768. 

The  original  act  of  Parliament  had  provided  for 
the  establishment  of  only  one  court,  to  be  known 
as  the  Court  of  Vice- Admiralty,  or  Court  of  Ad- 
miralty for  all  America,  with  jurisdiction  over  all 
matters  pertaining  to  maritime  affairs. 

It  was  found  inconvenient  to  hear  all  cases  in  one 
court,  and  the  act  was  so  amended  as  to  read  that 
an  action  could  be  brought  in  any  Court  of  Vice- 
Admiralty  in  the  colony  nearest  to  the  location 
where  the  cause  of  action  arose,  and  a  High  Court 
of  Admiralty  for  the  entire  continent  was  estab- 
lished, to  hear  appeals  from  the  lower  courts. 

Morris  was  the  last  judge  of  Admiralty  in  the 
province  of  New  York.  In  1774,  he  resigned  his 
office  because  his  sympathies  were  with  the  patriots, 

193 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

and  he  did  not  feel  that  he  could  hold  any  position 
under  the  Crown. 

The  history  of  the  Admiralty  Court  will  be  con- 
tinued hereafter,  from  the  war  up  to  its  abolish- 
ment by  federal  act. 


194 


CHAPTER  XIV. 
PERIOD  BEFORE  THE  WAR. 


Bench  and  Bar — Distrust  of  the  Colonial  Bar 
— CoLDEN^s  Letter — Affiliation  of  Judges — 
Subject  under  Consideration. 

BENCH  AND  BAR. 

For  a  period  of  twenty  years  immediately  prior 
to  the  opening  of  hostilities  between  the  colonies 
and  Great  Britain,  much  disorder  existed  among 
the  bench  and  bar.  The  calm  before  the  approach- 
ing storm  seems  to  have  instilled,  as  though  by  pre- 
monition, an  unsettled  and  restless  condition  of 
affairs  which  could  be  settled  and  adjusted  only  by 
the  issue  of  war. 

In  a  country  so  rich  in  natural  resources,  and  so 
commercially  progressive,  the  bar  had  early  as- 
sumed the  ascendency,  and  was  at  this  culminating 
epoch  the  dominant  class  in  the  province. 

A  perusal  of  contemporary  history  but  lends 
confirmation  to  this  statement;  the  vigorous  agita- 
tion against  English  rule  had  been  fostered  for  the 
greater  part  by  the  colonial  lawyers,  who  by  their 
influence  and  eloquence  urged  the  colonies  to  de- 
clare their  independence,  and  assert  it,  if  needs  be, 
by  an  appeal  to  arms. 

195 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 


DISTRUST  OF  THE  COLONIAL  BAR. 

About  ten  years  before  the  actual  declaration  of 
hostilities,  and  during  the  official  term  of  Lieuten- 
ant-Governor Golden,  the  government  was  forcibly 
impressed  by  the  pernicious  influence  which  the 
lawyers  of  the  day  exerted  over  the  people  of  the 
colony. 

COLDEN^S  LETTER. 

In  a  letter  to  England,  written  in  1765,  Golden 
says:  "  The  dangerous  influence  which  the  profes- 
sion of  the  law  has  obtained  in  this  province  more 
than  in  any  other  part  of  His  Majesty's  dominions 
is  a  principal  cause  of  disputing  appeals  to  the 
King,  but  as  that  influence  likewise  extends  to 
every  part  of  the  administration,  I  humbly  con- 
ceive that  it  has  become  a  matter  of  state,  which 
may  deserve  your  Lordship's  (the  letter  was  writ- 
ten to  the  Earl  of  Halifax)  particular  attention. 
After  Mr.  Delancey  had,  by  cajoling  Mr.  Glinton, 
received  the  commission  of  chief -justice,  during 
good  behavior,  the  profession  of  the  law  entered 
into  an  association,  the  effects  of  which  I  believe 
your  Lordship  had  formerly  opportunity  of  ob- 
serving some  striking  instances.  They  proposed 
nothing  less  to  themselves  than  to  obtain  the  direc- 
tion of  all  measures  of  government  by  making 
themselves  absolutely  necessary  to  every  governor 
in  assisting  him  while  he  complied  with  their  meas- 

196 


COLDEN^S  LETTER. 


ures  and  by  distressing  him  when  he  did  otherwise. 
For  this  purpose  every  method  was  taken  to  ag- 
grandize the  power  of  the  Assembly  where  the 
profession  of  the  law  must  always  have  great  in- 
fluence over  the  members,  and  to  lessen  the  author- 
ity and  the  influence  of  the  governor.  In  a  country 
like  this  where  few  men,  except  in  the  profession  of 
the  law,  have  any  kind  of  literature,  where  the  most 
opulent  families  in  our  memories  have  arisen  from 
the  lowest  ranks  of  the  people,  such  an  association 
must  have  more  influence  than  can  be  easily  imag- 
ined. By  means  of  their  profession,  they  become 
generally  acquainted  with  men's  private  afl*airs 
and  necessities;  every  man  w^ho  knows  their  influ- 
ence in  the  courts  of  justice  is  desirous  of  their 
favor  and  afraid  of  their  resentment.  Their  power 
is  generally  strengthened  by  enlarging  the  powers 
of  the  popular  side  of  government,  and  by  depreci- 
ating the  powers  of  the  Crown.  The  proprietors 
of  the  great  tracts  of  land  in  this  province  have 
united  strongly  with  the  lawyers,  as  the  surest  sup- 
port of  their  enormous  and  iniquitous  claims,  and 
thereby  this  faction  has  become  the  more  formid- 
able and  dangerous  to  good  government.  ^Ir. 
Prat,  who  had  no  family  or  private  connection  in 
this  province,  while  he  was  chief -justice,  discovered 
the  dangerous  influence  of  this  faction  in  the  ad- 
ministration of  justice,  as  well  as  otherwise,  and  he 
begged  the  assistance  of  government  to  have  it 
crushed,  but  he  was  prevented  by  death.     JNIany 

197 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

who  have  felt  or  perceived  the  bad  effects  of  the 
domination  of  lawyers,  lament  the  loss  of  such  a 
judge.  All  associations  are  dangerous  to  good 
government ;  more  so  in  distant  dominions  and  asso- 
ciations of  lawyers — the  most  dangerous  of  any 
next  to  the  military.  Were  the  people  freed  from 
the  dread  of  the  dominion  of  lawyers,  I  flatter 
myself  with  giving  general  joy  to  the  people  of 
this  province.  I  never  received  the  least  opposition 
in  my  administration,  except  when  I  opposed  the 
views  of  this  faction.  I  am  confident  their  views 
would  be  entirely  defeated  by  the  means  I  humbly 
proposed  in  my  preceding  letter  with  the  concur- 
rent assistance  of  His  Majesty's  ministers,  when  it 
becomes  necessary."  (New  York  Colonial  Docu- 
ments, Vol.  VII,  705.) 

In  fact  the  nation  as  a  whole  had  by  this  time 
learned  to  regard  the  profession  of  the  law  and  its 
champions  as  the  palladium  of  liberty  and  safe- 
guard of  their  rights  and  privileges.  Many  read 
law-books  as  literature,  and  Blackstone's  Commen- 
taries are  said  to  have  had  as  great  a  sale  in  Amer- 
ica as  in  England. 

AFFILIATION  OF  JUDGES. 

The  judges  who  had  been  appointed  by  the 
Crown,  viz.:  The  judges  of  the  Supreme  Court, 
with  the  exception  of  Robert  R.  Livingston,  the 
mayor  of  New  York  and  the  master  of  the  rolls,  all 
remained   loyal   to   the   Crown;   but   the   inferior 

198 


AFFILIATION  OF  JUDGES. 

judges  and  justices,  and  the  great  bodies  of  law- 
yers, took  up  the  cause  of  the  colonists,  and  many 
of  them  attained  positions  of  great  trust  in  the  new 
government  that  was  formed  during  the  war. 

After  the  British  obtained  possession  of  New 
York  City,  Long  Island,  and  parts  of  Westchester, 
the  royalist  judges  continued  to  exercise  their  judi- 
cial functions  within  these  boundaries.  Justices 
Jones  and  Ludlow  retired  to  their  estates  on  Long 
Island,  where  they  held  court.  Chief  Justice  Hors- 
manden  remained  in  New  York  City,  where  he  en- 
deavored to  perform  the  duties  of  his  office  in  try- 
ing cases  until  his  death,  in  1778. 

General  Howe  appointed  Ludlow  as  chief- 
justice,  and  in  1780  the  latter  was  also  made  master 
of  the  rolls,  and  empowered  to  hear  and  determine 
controversies  until  civil  government  should  be  re- 
stored. Ludlow  also  acted  in  the  capacity  of 
admiralty  judge  and  superintendent  of  police  for 
Long  Island. 

Many  have  maintained  that  the  subject  of  con- 
tention between  the  colonists  and  royalists,  from 
the  drafting  of  the  Stamp  Act  to  the  Decla- 
ration of  Independence,  w^as  the  legal  right  or 
wrong  of  taxation  without  representation.  The 
lawyers  were  the  ones  who  fanned  sparks  of  dis- 
sension into  a  flame  that  razed  English  sovereignty 
in  America  to  the  ground. 


199 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 


SUBJECT  UNDER   CONSIDERATION. 

We  are  now  arrived  at  the  crucial  period  in  the 
history  of  the  courts  of  this  state,  and  before  pro- 
ceeding with  the  subject,  it  is  essential  that  the 
reader  have  a  complete  understanding  of  the  courts 
of  the  colony  of  New  York,  their  jurisdiction  and 
general  powers,  because,  as  we  shall  see,  the  newly 
created  state  merely  re-established,  with  some 
amendments,  all  the  courts  that  had  existed  previ- 
ous to  the  war. 


200 


PART  II 


CONSTITUTIONAL  PERIOD— 1777-1909. 


CHAPTER  XV. 


EFFECT  OF  WAR  ON  THE  COURTS. 


Loyal  Judges — New  York  City  under  Mar- 
tial Law — General  Robertson  in  Command 
OF  New  York  —  Patriotic  Convention  — 
Committees  of  Safety  —  District  Commit- 
tees —  Iniquitous  System  —  Convention  of 
Representatives  of  the  State  of  New  York 
— First  Constitution  of  New  York — Con- 
stitutional Provisions  —  Commission  for 
Southern  District. 

loyal  judges. 

The  judges  who  had  remained  loyal  to  the  Crown 
made  every  effort  to  continue  in  the  faithful  dis- 
charge of  their  judicial  duties.  So  far  as  practi- 
cable, the  several  sessions  of  court  were  continued 
in  the  different  localities;  but  as  the  great  mass  of 
the  people  espoused  the  patriotic  cause,  they  ig- 
nored the  tory  judges,  and  refused  to  bring  any 
action  before  them. 

The  great  mass  of  litigation  was  brought  before 
the  ex-of!icio  judges  who  had  seen  fit  to  resign  be- 
cause their  sentiments  were  with  the  people,  and 
these  judges  were  forced  to  try  all  manner  of 

203 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

cases,  even  though  but  one  judge  constituted  the 
entire  bench. 

The  last  circuit  of  the  Supreme  Court  under  the 
provincial  government  was  held  by  Thomas  Jones, 
at  White  Plains,  New  York,  in  April,  1776,  and 
history  tells  us  that  the  session  was  not  much  of  a 
success,  and  did  not  last  the  usual  length  of  the 
term. 

NEW  YORK  CITY  UNDER  MARTIAL  LAW. 

After  the  outbreak  of  hostilities,  and  when 
Washington  was  in  possession  of  the  city  of  New 
York,  he  did  not  interfere  with  the  local  administra- 
tion of  the  law  and  the  courts  of  justice,  but  allowed 
them  to  continue  as  previously. 

After  the  capture  and  occupation  of  the  city  of 
New  York  by  the  British  under  General  Howe, 
the  latter  issued  an  edict  closing  all  the  civil  courts, 
and  declared  the  city  under  martial  law.  Thieves 
and  criminals  of  all  descriptions  went  unpunished, 
and  the  helpless  inhabitants  groaned  under  the  mili- 
tary yoke,  without  redress  of  their  grievances.  A 
petition  to  re-establish  civil  government,  addressed 
to  the  general,  was  ignored.  During  the  war  a  sem- 
blance of  justice  was  maintained  in  the  city,  but, 
as  has  been  previously  said,  the  people  would  coun- 
tenance no  judge  who  was  loyal  to  the  English 
king;  indeed,  in  some  localities,  the  inhabitants 
themselves  tried  to  form  a  local  judiciary,  but  this 
was  not  approved  of  by  the  military  rulers. 

204 


PATRIOTIC  CONVENTION. 


GENERAI.   ROBERTSON    IN    COMMAND    OF   NEW    YORK. 

When  General  Robertson  was  given  command 
of  the  forces  at  New  York  in  1780,  he  hstened  to 
the  earnest  appeals  of  the  people,  and  established 
Courts  of  Police  to  try  petty  criminal  offences;  he 
also  made  some  pretence  of  re-establishing  the 
Supreme  Court  on  lines  similar  to  those  before  the 
Revolution,  appointing  William  Smith  as  the  chief 
justice  thereof;  but  the  people  never  recognized 
Smith  because  of  his  loyalty  to  the  Crown,  and  we 
have  no  records  showing  that  any  cases  were  tried 
before  him. 

Robertson,  however,  held  Courts  of  Chancery,  he 
acting  as  chancellor.  From  January,  1781,  until 
June,  1783,  a  session  of  court  was  convened  once 
each  month.  We  have  absolutely  no  records  of 
either  Supreme  Courts  or  Courts  of  Chancery  held 
during  the  war,  because  the  British  took  all  records 
with  them  when  they  evacuated  New  York.  The 
only  exception  is  the  opinion  of  Governor  Tryon, 
which  was  delivered  while  Jauncey  was  master  of 
the  rolls. 

PATRIOTIC  CONVENTION. 

When  the  battle  of  Lexington  was  noised 
throughout  the  thirteen  colonies,  a  convention  of 
republicans  of  the  state  of  New  York  was  called. 
All  the  convention  accomplished  was  to  recommend 
that  the  inhabitants  of  each  county  choose  delegates 

205 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

to  a  general  convention.  Instead,  the  people  chose 
electors  who  in  turn  elected  county  committees  of 
safety  to  name  delegates  to  a  "  Provincial  Con- 
gress." This  "  Congress  "  first  met  on  May  22nd, 
1775,  but  gave  no  attention  to  local  matters,  devot- 
ing itself  to  the  consideration  of  the  more  momen- 
tous and  pressing  concerns  of  the  republican  cause 
within  the  colony.  Civil  government  within  the 
separate  colonies  was  entrusted  to  the  committees 
of  safety. 

COMMITTEES  OF  SAFETY. 

The  committees  were  accountable  for  their  action 
to  the  provincial  congress,  of  whom  they  were  ex- 
pected to  take  counsel,  and  by  whose  inspiration 
their  measures  were  to  be  dictated. 

These  committees  seem  to  have  generally  relieved 
themselves  of  this  accountability,  and  to  have  exer- 
cised legislative,  executive,  and  judicial  powers  in 
accordance  with  their  own  conceptions  of  the  public 
weal. 

On  account  of  the  large  number  who  composed 
the  committees,  it  was  found  inconvenient  to  refer 
minor  matters  to  the  committees  as  a  whole;  hence 
sub-committees  of  two  or  three  were  appointed  for 
each  locality.  The  power  they  exercised  in  the  set- 
tling of  disputes  was  similar  to  that  of  the  general 
committee,  but  subject  to  the  latter 's  control  and 
supervision. 


206 


INIQUITOUS    SYSTEM. 


DISTRICT  COMMITTEES. 


These  sub-  or  district  committees  usually  had 
jurisdiction  of  all  judicial  affairs,  and  until  the 
meeting  of  the  convention  of  the  people  of  the  state 
of  New  York,  after  the  signing  of  the  Declaration 
of  Independence,  they  acted  in  a  summary  manner. 
Their  chief  function  seems  to  have  been  to  arrest 
and  imprison  persons  suspected  of  espousing  Tory 
sentiments.  These  unfortunates  were  subjected  to 
a  political  martyrdom  which  can  be  explained  only 
by  the  strenuous  partisanship  which  permeated  all 
institutions  and  classes  in  the  colonies.  Patriotic 
zeal,  which  was  now  at  a  premium,  led  the  eager 
colonists  on  the  "  hunt  for  suspects,"  and  when  one 
was  found,  a  complaint  was  lodged  against  him 
with  the  committee,  which  was,  in  effect,  to  seal  his 
doom. 

INIQUITOUS  SYSTEM. 

Bail  was  not  accepted,  and  gross  injustice  was 
thus  perpetrated  on  many  innocent  victims.  Should 
investigation  show  that  the  prisoner  was  wrong- 
fully apprehended,  he  was  accordingly  acquitted, 
but  he  was  nevertheless  forced  to  pay  a  heavy  fine 
and  all  costs.  This  led  to  many  complaints,  and  the 
presentation  of  an  earnest  appeal  for  a  convention 
to  organize  a  more  righteous  form  of  government. 


207 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

"  CONVENTION    OF   REPRESENTATIVES    OF   THE    STATE 
OF  NEW  YORk/^ 

This  resulted  in  the  election  of  a  body  styling 
itself,  "  A  Convention  of  Representatives  of  the 
State  of  Xew  York."  A  meeting  was  called  for 
July  9th,  1776,  at  White  Plains,  but  on  account  of 
the  imminent  danger  from  the  proximity  of  the 
enemy  at  New  York,  it  shifted  from  place  to  place, 
until  it  was  finally  able  to  hold  an  undisturbed  ses- 
sion on  April  20th,  1777,  at  Kingston. 

FIRST  CONSTITUTION  OF  NEW  YORK. 

This  convention  framed  the  first  constitution  of 
the  state  of  New  York,  establishing  a  republican 
form  of  government.  After  citing  the  fact  that  the 
Continental  Congress  adopted  the  Declaration  of 
Independence,  which  was  made  a  part  of  the  con- 
stitution, the  document,  in  about  fifty  sections,  or- 
ganized the  new  government. 

Sections  24,  25,  27,  28,  32,  33,  34,  35,  and  41  re- 
late to  the  establishment  of  courts  within  the  state. 
But  one  new  court  was  created,  the  constitution 
recognizing  the  existence  of  all  the  courts  in  the 
colony  of  New  York  prior  to  the  Declaration ;  thus 
was  legislative  sanction  finally  given  to  these  hated 
tribunals,  against  which  the  colonists  had  struggled 
for  so  many  years. 


208 


THE  CONSTITUTION   OF   1777. 


CONSTITUTIONAL  PROVISIONS. 

The  constitution  provided  that  the  governor, 
chancellor,  the  judges  of  the  Supreme  Court,  or 
any  two  of  them,  should  constitute  a  council  of  re- 
vision to  accept  or  amend  all  laws  passed  by  the 
Legislature. 

It  prohibited  the  chancellor  or  judges  of  the 
Supreme  Court  from  actively  filling  any  office 
other  than  that  of  delegate  to  the  Continental  Con- 
gress, and  the  first  judges  of  the  several  County 
Courts  from  holding  any  office  other  than  that  of 
delegate  to  the  Continental  Congress,  or  senator. 
Should  any  of  them  be  elected  to  any  other  office, 
he  was  allowed  to  exercise  his  option  as  to  which 
office  he  preferred  to  fill. 

By  constitutional  provision,  the  officers  of  the 
different  courts  were  to  be  appointed  by  the  judges 
of  the  respective  courts  at  their  pleasure. 

The  constitution  also  provided  that  in  all  trials  of 
indictments  or  impeachments  the  defendant  might 
retain  or  be  assigned  counsel,  for  his  defence.  By 
a  section  of  the  constitution  it  was  declared  that  all 
laws  in  existence  in  the  colony  prior  to  the  battle 
of  Lexington,  April  19th,  1775,  were  to  continue 
in  force  in  the  state  of  New  York,  subject  to  any 
limitation  and  amendment  that  might  be  enacted 
by  the  Legislature.  This  same  section  legally  rec- 
ognized the  courts  then  in  being,  and  declared  as 

209 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

part  of  the  common  law  of  the  state,  any  laws 
passed  by  the  convention  of  the  state  of  New  York ; 
these  were  to  be  later  formally  ratified  by  legisla- 
tive sanction. 

Trial  by  jury  was  rendered  inviolate,  and  the 
Legislature  was  prohibited  from  passing  an  act  of 
attainder  for  any  crime  other  than  those  committed 
before  the  termination  of  th^  late  war,  and  from 
creating  any  new  courts  except  as  shall  proceed 
according  to  the  common  law. 

On  the  8th  of  May  the  council  of  revision  ap- 
pointed Robert  R.  Livingston  first  chancellor. 
Judges  of  the  Supreme  Court  and  inferior  courts, 
and  an  attornej^-general,  were  also  appointed.  On 
the  17th  of  October,  these  officers  were  formally 
commissioned,  and  entered  upon  their  active  duties. 

COMMISSION  FOR  SOUTHERN  DISTRICT. 

On  October  23rd,  1779,  the  council  passed  an  act 
which  appointed  a  commission  for  the  southern  dis- 
trict of  the  state,  including  New  York  City,  to  be 
composed  of  the  governor,  members  of  the  Legisla- 
ture, the  chancellor.  Supreme  Court  judges,  the 
attorney-general  and  county  judges  of  the  district. 
This  body  was  to  govern  the  district  in  the  interval 
that  would  ensue  between  the  evacuation  of  New 
York  by  the  British,  and  the  first  meeting  of  the 
Legislature.  Any  seven  of  the  above,  of  whom  the 
governor  was  to  be  one,  were  empowered  to  act  for 

210 


COMMISSION  FOR  SOUTHERN  DISTRICT. 

a  period  of  sixty  days,  unless  the  Legislature  should 
meet  in  the  meantime.  This  commission  was  for- 
mally organized  shortly  after  the  evacuation,  No- 
vember 25th,  1783,  and  continued  in  power  until 
February  12th,  1784,  during  which  time  it  enacted 
some  important  ordinances  which  were  later  ratified 
by  the  Legislature  of  the  state. 


211 


CHAPTER  XVI. 

THE   COURT  OF   COMMON  PLEAS   OF 

THE  CITY  OF  NEW  YORK,  OR 

THE  MAYOR'S  COURT. 


During  War — David  Mathews — First  Mayor 
UNDER  Constitution  —  Rules  of  Practice 
Adopted  —  Formal  Opening  of  Court  — 
Status  of  Court — Popularity  of  Court — 
Prominent  Lawyers — Alexander  Hamilton 
— Rutgers  vs.  Waddington — State  Sover- 
eignty— History  of  the  Case — Indemnity 
Enactment — Sensational  Trial — Constitu- 
tional Argument  of  Hamilton  —  The 
Courtis  Decision — Popular  Indignation — 
Able  and  Upright  Judges  —  Recorder  as 
Judge  of  Mayor^s  Court — Official  Designa- 
tion OF  Court  of  Common  Pleas — Mayor 
Deprived  of  Judicial  Power — Judge  Irving 
— Court  of  Sessions  —  Appellate  Jurisdic- 
tion —  Constitutional  Enactment  —  Juris- 
diction OF  Common  Pleas — Court  Abolished. 

DURING    AVAR. 

In  1766,  Whitehead  Hicks,  an  eminer^t  and  well 
known  lawyer  of  his  time,  was  appointed  by  the 

213 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

governor  to  act  as  mayor  of  the  city  of  New  York. 
He  held  this  position  for  a  period  of  about  ten 
years,  and  presided  in  the  Mayor's  Court.  When, 
in  1776,  a  vacancy  was  created  in  the  Supreme 
Court  by  the  resignation  of  Robert  R.  Livingston, 
who  had  espoused  the  popular  cause.  Hicks  re- 
signed the  office  of  mayor,  and  was  appointed  a 
justice  of  the  Supreme  Court  in  Livingston's  place; 
but  as  soon  as  the  Declaration  of  Independence 
was  published  broadcast  throughout  the  thirteen 
colonies.  Hicks,  who  at  heart  sympathized  with  the 
patriotic  cause,  retired  from  active  duty  as  a  judge, 
and  died  shortly  after,  while  the  war  was  still  at  its 
height. 

DAVID  MATHEWS. 

David  Mathews  was  appointed  mayor  in  his 
stead  in  1776.  Mathews  had  previously  been  an 
alderman  in  the  city  council,  and  subsequently, 
having  been  indicted  by  the  committee  of  safety  for 
the  county  of  New  York,  as  a  conspirator  against 
the  patriotic  cause,  he  was  condemned  to  death ;  but 
he  either  escaped  the  clutch  of  the  committee  or  was 
pardoned,  for  records  show  that  he  acted  in  the 
capacity  of  mayor  as  late  as  1780. 

FIRST  MAYOR  UNDER  CONSTITUTION. 

When  the  English  evacuated  the  city  of  New 
York  and  its  vicinity,  in  1783,  the  inhabitants  im- 
mediately took  measures  to  organize  a  municipal 

214 


FORMAL  OPENING  OF  COURT. 

government  under  the  new  constitution.  In  the 
early  months  of  1784,  the  commission  for  the  south- 
ern district  of  the  State  of  New  York  appointed 
James  Duane  as  mayor  of  the  city,  and  Richard 
Varick  was  made  recorder. 

RULES  OF  PRACTICE  ADOPTED. 

Duane  immediately  promulgated  rules  of  prac- 
tice for  the  Mayor's  Court  and  the  Court  of 
Sessions,  consisting  of  thirty-five  sections.  He  con- 
vened the  Mayor's  Court  for  the  10th  day  of  Feb- 
ruary, 1784.  On  this  day  he  publicly  adopted  the 
rules  that  he  had  composed,  breaking  up  the  mon- 
opoly of  the  eight  lawyers,  who,  previous  to  the 
Revolutionary  War,  had  been  the  only  ones 
licensed  by  the  governor  to  practice  in  the  JMayor's 
Court;  instead  he  proclaimed  an  order  authorizing 
all  attorneys  who  practiced  in  the  Supreme  Court, 
to  practice  before  the  Mayor's  Court.  He  then 
adjourned  the  session  of  the  court  for  a  period  of 
three  weeks,  to  allow  time  for  the  issuing  and  re- 
turning of  processes. 

FORMAL  OPENING  OF  COURT. 

On  the  24th  of  February,  1784,  the  court  for- 
mally opened  for  business,  with  Duane  and  Varick 
on  the  bench.  On  that  day  one  hundred  sixteen 
processes  w^ere  returned  and  some  of  the  attorneys 
who  then  appeared  before  the  court  were  men  like 

215 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

Alexander  Hamilton,  Aaron  Burr,  Colonel  Troup, 
William  B.  Livingston  and  William  S.  Livingston. 
On  the  next  adjourned  day  one  hundred  sixty- 
seven  writs  were  returned,  and  at  a  later  session,  in 
July  of  the  same  year,  one  hundred  ninety-eight 
were  returned. 

STATUS  OF  COURT. 

This  court,  from  the  date  of  its  establishment  by 
Duane,  accomplished  four  times  as  much  business 
as  the  Supreme  Court,  and  extended  its  functions 
to  include  actions  of  every  nature.  The  reasons 
ascribed  for  this  were  the  great  confidence  felt  in 
the  legal  ability  of  Duane,  and  the  frequency  of 
the  sessions  of  the  Mayor's  Court,  which  to  a  great 
extent  facilitated  business. 

Duane  had  become  very  prominent  in  the  legal 
profession  before  the  Revolutionary  War,  by  his 
learning,  integrity,  and  capacity  for  business,  and 
his  legal  practice  was  very  considerable.  During 
the  war  he  took  a  very  active  part  in  the  business  of 
the  colonial  cause,  and  acted  as  a  member  of  the 
Provincial  Congress,  of  the  committee  of  safety  for 
his  county,  of  the  convention  that  adopted  the  first 
constitution  of  the  state,  and  also  of  the  Continental 
Congress.  He  was  one  of  the  members  of  the  latter 
body  when  it  adopted  the  Declaration  of  Inde- 
pendence. 

Such  a  reputation  and  character  naturally  at- 
tracted into  the  court  where  he  presided,   every 

216 


PROMINENT  LAWYERS. 

lawyer  of  ability  in  the  city  and  neighborhood.  This 
court  became  during  his  term,  and  during  the  terms 
of  his  able  successors,  not  only  the  leading  court  in 
the  city,  but  one  of  the  most  important  tribunals 
within  the  state. 

POPULARITY   OF   COURT. 

After  Duane  and  Varick,  men  like  Sam  Jones, 
James  Kent,  and  Richard  Harrison  were  respect- 
ively the  recorders  of  the  city,  up  to  the  year  1800, 
and  the  leading  lawyers  of  the  state  came  before 
this  tribunal;  amongst  them,  deserving  of  special 
mention,  were  Alexander  Hamilton,  Aaron  Burr, 
Colonel  Troup,  the  Livingstons,  Egbert  Benson, 
Morgan  Lewis  and  Josiah  Ogden  Hoffman,  all  of 
whom  made  their  first  forensic  efforts  in  the 
Mayor's  Court,  and  later  became  famous  in  the 
history  of  the  jurisprudence  of  the  state;  in  fact 
this  court  gained  so  much  popularity  that,  although 
it  was  the  privilege  of  a  defendant  to  remove  an 
action  from  it  to  the  higher  tribunals,  if  the  amount 
involved  exceeded  twenty  pounds,  this  right  was 
rarely  invoked,  for  the  records  of  the  court  show 
that  it  tried  cases  of  the  highest  importance,  involv- 
ing large  sums  of  money  and  the  title  to  important 
propertj^ 

PROMINENT  LAWYERS. 

At  that  period,  the  prominence  and  practice  of  a 
lawyer  was  judged  by  the  number  of  writs  he  sued 

217 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

out,  or  to  which  he  appeared.  The  three  attorneys, 
who,  to  judge  from  the  records  of  the  Mayor's 
Court,  seem  to  have  been  in  the  largest  practice, 
were  Burr,  who  appeared  to  seventeen  writs  at  one 
session,  Harrison,  who  appeared  to  thirteen  at  an- 
other, and  William  S.  Livingston,  who  exceeding 
both  of  them,  appeared  to  sixty-seven  writs  at  a 
session  in  July,  1784. 

At  the  preceding  May  term,  we  have  the  first 
instance  of  an  attorney  being  specially  admitted  to 
practice  in  the  court.  Cornelius  Bogert,  upon  his 
production  of  a  license  from  the  Supreme  Court, 
was  admitted  at  that  term. 

ALEXANDER   HAMILTON. 

Alexander  Hamilton  had  not  had  much  practice 
as  an  attorney  before  the  war;  during  the  war  he 
had  rendered  active  and  meritorious  service  to  the 
patriotic  cause,  and  it  was  only  after  the  conclusion 
of  hostilities  that  he  took  up  the  study  of  law.  The 
first  cause  in  which  he  appeared  was  one  of  which 
we  must  make  special  mention,  for  it  not  only 
involved  important  principles  affecting  the  life  of 
the  entire  nation,  but  we  have  the  opinion  of  Duane 
in  that  case,  considered  at  all  times  as  one  of  the 
most  important  decisions  ever  rendered  in  the  judi- 
cial history  of  the  state. 

RUTGERS  vs.  WADDINGTON STATE  SOVEREIGNTY. 

The  case  in  question  was  the  matter  of  Rutgers 

218 


RUTGERS  VS.  WADDINGTON STATE  SOVEREIGNTY. 

VS.  Waddington,  and  it  brought  into  discussion  the 
powers  and  rights  of  the  confederated  and  of  indi- 
vidual states.  It  was  this  question  that  attracted 
Hamilton's  attention  to  the  case,  and  led  to  his 
bringing  forth  the  principles  growing  out  of  the 
union  of  the  states,  and  the  establishment  of  inde- 
pendence— principles  which  he  afterwards  brought 
forth  at  the  National  Convention  in  1787,  and 
which  were  subsequently  embodied  in  the  Constitu- 
tion of  the  United  States. 

HISTORY    OF   THE   CASE. 

The  cause  of  this  action  was  an  act  which  was 
passed  in  1783,  providing  that  anyone  who,  by  rea- 
son of  the  invasion  of  the  enemy,  had  left  his  place 
of  residence,  might  bring  an  action  for  trespass  and 
damage  against  anyone  who  had  occupied  or 
injured  his  property  or  who  had  received  his  goods 
while  the  same  were  under  the  control  of  the  enemy ; 
it  prohibited  the  defendant  from  pleading  or  gi^dng 
any  evidence  that  the  property  was  occupied, 
injured,  or  destroyed  by  a  military  command. 

The  action  was  brought  under  the  statute  to  re- 
cover six  years'  rent,  for  the  occupation  by  the 
defendant  of  an  ale-house  in  the  city  of  New  York, 
while  the  British  were  in  possession  here.  The 
defendant  pleaded  the  possession  of  the  city  by  the 
British  army,  and  a  license  from  the  general  in  com- 
mand in  1778,  given  to  him,  a  British  subject,  for 

219 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

the  purpose  of  commerce,  to  use  and  occupy  the 
premises  until  the  30th  day  of  April,  1780. 

He  brought  forth,  as  additional  evidence,  the 
authority  from  Sir  Henry  Clinton  (the  last  of  the 
British  generals  here)  to  carry  on  the  business  after 
1780;  also  the  Treaty  of  Peace,  by  which  all  claims 
that  the  citizens  who  were  subject  to  either  of  the 
contracting  parties  might  have  against  each  other 
for  indemnity  for  damages  or  iij juries  done  to  the 
public  and  individuals  during  the  war,  were  relin- 
quished and  released.  To  all  of  this  the  plaintiff 
demurred  on  the  ground  of  the  statutory  act  before 
mentioned. 

INDEMNITY  ENACTMENT. 

This  act,  the  gist  of  which  was  that  one  belliger- 
ent might  commence  an  action  against  another  after 
articles  of  peace  had  been  agreed  upon,  to  recover 
damages  for  loss  of,  or  injury  to,  property,  occa- 
sioned during  the  war,  was  without  precedent  in 
the  history  of  the  nations  of  the  world.  The  pas- 
sage of  such  an  act  can  be  explained  by  a  review  of 
the  extreme  hatred  and  dislike  felt  towards  the 
royal  adherents  by  those  who  had  espoused  the  pa- 
triotic cause,  and  who  had  suffered  so  much  from  a 
monetary  standpoint,  both  in  real  and  personal 
property,  on  account  of  the  war. 

The  time  was  just  ripe  for  such  action  on  the 
part  of  the  Legislature ;  absolutely  no  consideration 
was  felt  for  any  Tory  and  any  measure  against 

220 


INDEMNITY  ENACTMENT. 

their  interests  and  in  favor  of  the  patriots  was  con- 
sidered fit  and  proper  by  the  latter.  The  principles 
involved  in  this  case  were  so  near  the  hearts  of  all 
the  inhabitants,  and  on  the  outcome  of  this  trial 
depended  the  final  adjustment  of  property  of  such 
enormous  values,  that  the  interest  excited  was  gen- 
eral and  widespread. 

Probably  no  other  single  case  in  this  state  has 
ever  drawn  such  throngs  to  a  courthouse,  nor  has  it 
had  such  distinguished  men  of  the  legal  profession 
of  any  one  period,  to  argue  the  points  at  issue. 

SENSATIONAL  TRIAL. 

The  defendant  in  addition  to  engaging  Hamilton 
for  his  counsel,  also  retained  William  S.  Livingston 
and  Morgan  Lewis.  Hamilton  had  every  stimu- 
lant for  putting  forth  his  utmost  effort,  for  the 
opinion  of  the  public  at  large  was  against  his  side, 
and  the  excitement  and  interest  in  the  outcome  of 
the  case  were  not  confined  merely  to  those  who  had 
a  pecuniary  interest  at  stake,  but  extended  to  the 
entire  population  of  the  state. 

The  Revolutionary  War  had  just  been  brought 
to  a  happy  finish;  the  city  was  still  in  a  disordered 
state,  and  the  antagonistic  features  in  respect  to  the 
course  and  principles  of  government,  which  later 
led  to  the  formation  of  the  different  political 
parties,  had  already  become  the  subjects  of  discus- 
sion and  agitation.  Besides  all  these  interests,  the 
relative  positions  of  the  parties  to  this  action  added 

221 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

especially  to  the  deep  interest  felt  in  the  proceedings 
of  the  trial;  the  defendant  was  a  worthy  merchant 
of  the  town  and  a  loyalist,  who  had  lived  in  the  city 
for  many  years,  and  had  adhered  to  the  British 
cause  throughout  the  entire  war,  while  the  plaintiff 
was  a  poor  widow,  who  had  lost  her  all  during  the 
war,  and  sought  to  regain  some  of  her  possessions 
by  this  action. 

As  a  finishing  touch  to  all  this  the  attorney- 
general  of  the  state,  Egbert  Benson,  volunteered 
his  services  on  behalf  of  the  plaintiff,  thus  making 
the  number  of  counsel  on  each  side  equal,  for  Col- 
onel Troup  and  Mr.  Lawrence  also  appeared  for 
the  plaintiff. 

The  courthouse  used  for  this  great  occasion  was  a 
hall  that  had  been  ravished  during  the  war  by  the 
British  troops.  A  great  audience  gathered  within 
its  four  walls,  and  the  windows  were  jammed  with 
eager  faces,  waiting  to  catch  every  word  that  fell 
from  the  lips  of  the  learned  counsel.  Six  of  the 
latter  engaged  in  the  case  were  heard  in  the  argu- 
ment, but  the  leading  points  were  brought  out 
mainly  by  Egbert  Benson  on  the  one  side,  and 
Alexander  Hamilton  on  the  other. 

CONSTITUTIONAL   ARGUMENT   OF   HAMILTON. 

Hamilton  argued  in  opposition  to  the  attorney- 
general,  who  placed  his  main  reliance  upon  the 
statute  aforementioned,  and  the  sovereign  capacity 
of  the  state  to  pass  any  act. 

222 


CONSTITUTIONAL   ARGUMENT   OF   HAMILTON. 

Hamilton  contended  that  the  act  passed  by  the 
legislature  was  in  direct  violation  of  international 
law,  which,  by  the  constitution  of  1777,  had  become 
part  of  the  common  law,  and  thus  an  integral  part 
of  the  law  of  the  state.  This  he  followed  up  with  a 
pithy  discussion  upon  the  general  rights  of  war,  and 
the  relations  of  belligerents  to  each  other  in  their 
capacity  as  individuals,  after  the  close  of  the  war. 

He  claimed  that  the  defendant  was  protected  by 
the  terms  of  the  treaty,  and  that  the  state  had  no 
power  to  deprive  him  of  any  right  or  privilege  that 
the  treaty  granted;  that  the  Continental  Congress 
was  one  of  the  parties  to  that  treaty,  and  it  had 
no  right  to  violate  any  of  its  terms ;  surely  then,  the 
state  had  no  such  right. 

In  answer  to  this  the  attorney-general  argued 
that  each  state  was  an  independent  sovereignty  in 
respect  to  its  own  citizens  and  their  property;  that 
it  had  the  power  to  pass  laws  to  regulate  their 
rights,  and  to  fix  their  liabilities ;  that  it  might  enact 
a  law  affecting  the  property  or  person  of  anyone 
within  its  jurisdiction;  in  that  respect,  he  claimed 
the  sovereignty  of  the  people  in  each  and  every  state 
was  absolute  and  beyond  control  of  even  the  Con- 
tinental Congress. 

Hamilton  answered  this  argument  by  one  that 
has  gone  down  the  pages  of  history,  and  which 
laid  the  basis  for  the  arguments  which  men  like 
Webster  advanced  against  states'  rights.  Ham- 
ilton said  that  if  what  the  learned  attorney-general 

223 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

stated  were  really  the  case,  then  the  union  of  states 
was  but  a  fiction,  and  he  went  into  a  deep  examina- 
tion of  the  nature  of  the  union  established  by  the 
thirteen  colonies,  and  the  general  principles  govern- 
ing a  popular  government. 

The  sovereignty  of  the  people,  he  claimed,  began 
with  the  compact  which  united  them  together  in 
their  attempt  to  cast  off  the  yoke  of  England  and 
establish  their  own  government.  They  were  not  an 
aggregation  of  states,  each  independent  of  the 
other ;  they  had  united  themselves  for  a  common  end 
and  purpose,  by  the  Articles  of  Confederation,  and 
had  vested  in  a  general  and  national  Congress  those 
powers  which  were  essential  to  the  proper  adminis- 
tration of  their  affairs  in  their  united  capacity.  The 
external  sovereignty  of  the  United  States  could  be 
recognized  only  by  a  foreign  nation.  It  was  repre- 
sented by  the  states  in  their  united  characters  and 
it  was  through  the  National  Congress,  composed 
of  delegates  sent  from  each  of  the  states  who  repre- 
sented the  people  as  a  whole.  By  the  Articles  of 
Confederation,  any  state  was  prohibited  from 
declaring  war  except  in  a  case  of  actual  invasion  of 
its  territories,  or  a  threatened  invasion  by  the 
Indians.  It  had  no  right  to  make  treaties  with 
foreign  countries;  the  general  power  of  declaring 
war,  or  that  affecting  peace,  or  of  entering  into 
any  treaties  was  vested  exclusively  in  the  Conti- 
nental Congress.  The  making  of  a  treaty,  therefore, 
was  within  the  power  of  Congress;  it  bound  each 

224 


CONSTITUTIONAL   ARGUMENT   OF   HAMILTON. 

state;  and  no  state  could  pass  a  law  violating  such 
a  treaty,  or  repudiating  any  of  its  provisions. 

To  this  Benson  answered  that  whatever  might  be 
claimed  as  the  nature  of  the  confederation,  it  could 
exist  only  by  the  consent  of  the  states,  as  long  as 
they  saw  fit  to  continue  members  of  it,  and  that  if  a 
state  thought  fit  to  return  again  to  its  individual 
sovereignty,  it  had  the  power  to  do  so  at  any  time. 

It  was  here  that  Hamilton  put  forth  his  strongest 
argument  in  answer  to  the  attorney-general.  He 
claimed  that  the  state  of  New  York  was  a  party  to 
the  Declaration  of  Independence  and  also  to  the 
Articles  of  Confederation.  The  first  was  a  league 
entered  into  by  thirteen  colonies,  by  which  they 
threw  off  their  allegiance  to  the  British  crown,  and 
as  united  colonies  declared  themselves  free  and 
independent  of  any  government  but  their  own, 
which  they  might  establish.  The  other  was  an 
agreement  entered  into  by  these  thirteen  colonies, 
which,  by  its  terms,  was  for  the  promotion  of  per- 
petual union ;  as  separate  states  they  had  therefore 
entered  into  a  contract  for  purposes  expressed  by 
the  instrument  by  which  the  contract  was  formed, 
and,  like  any  other  contract,  no  one  part  of  it  could 
be  withdrawn  or  released  from  its  obhgations  with- 
out the  general  consent  of  the  whole. 

To  the  argument  that  the  Mayor's  Court,  as  a 
state  tribunal  could  not  disregard  the  laws  of  the 
state,  although  such  laws' might  be  in  conflict  with 
what  had  been  agreed  to  by  the  National  Congress, 

225 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

he  made  answer  that  the  Articles  of  Confederation 
having  made  no  provision  for  the  estabhshment  of 
a  judiciary,  except  in  case  of  dispute  between  indi- 
vidual states,  or  in  cases  of  captures  or  crimes  com- 
mitted upon  the  high  sea,  the  state  tribunal  must 
recognize  and  carry  out  the  measures  of  the 
National  Congress. 

THE   COURTIS   DECISION. 

In  delivering  his  judgment,  Duane  mentioned 
the  uncommon  ability  with  which  the  case  was 
argued,  particularly  by  Hamilton  and  the  attorney- 
general.  He  held  that  the  defendant  was  liable  for 
the  rent  of  the  premises  for  three  years,  as  their  use 
during  that  period  could  not  be  regarded  as  having 
any  relation  to  the  war;  the  license  from  the  com- 
missary-general conferred  upon  the  defendant  no 
right  to  the  possession,  that  officer  having  no 
authority  to  grant  one.  For  the  remaining  three 
years,  during  which  the  property  was  held  under  an 
order  from  Sir  Henry  Clinton,  by  whom  or  whose 
agent  the  rent  had  been  annually  claimed,  he  held 
that  the  defendant  was  not  liable.  By  the  law  of 
nations,  restitution  of  the  rents,  issues  of  houses  or 
lands  collected  in  good  faith  under  the  authority  of 
a  commander-in-chief  while  in  possession  of  the  city 
during  a  state  of  war  could  not  be  enforced ;  the  law 
of  nations  had  become,  by  the  constitution  of  the 
state,  the  law  of  the  state,  and  it  must  be  regarded 
as  a  fundamental  law,  applicable  to,  and  in  force, 

226 


THE   COURTS  DECISION. 

throughout  the  confederacy.  By  the  federal  com- 
pact, the  different  states  were  united  into  one  body ; 
in  respect  to  one  another  and  in  their  national 
affairs,  they  exercised  a  joint  sovereignty,  the  will 
of  which  could  only  be  expressed  by  the  acts  of  the 
delegates  of  the  different  states  convened  in  a  Con- 
tinental Congress.  Abroad,  the  states  could  only 
be  recognized  in  their  federal  capacity,  and  having 
joined  together  and  having  formed  a  nation,  they 
could  only  be  recognized  and  governed  by  the  law 
of  nations ;  no  one  state  could  arrogate  to  itself  the 
right  to  change,  at  pleasure,  those  laws  which  are 
received  by  the  common  consent  of  the  whole  civil- 
ized world;  for  a  separate  state  to  alter  or  abridge 
any  one  of  the  known  laws  of  nations  was  contrary 
to  the  nature  of  the  confederacy,  in  conflict  with 
the  nature  of  the  articles  and  dangerous  to  the  life 
of  the  Union.  The  judge  goes  on  to  say  that,  in 
his  opinion,  the  state's  rights  should  not  prevail 
above  the  national  rights. 

POPULAR   INDIGNATION. 

When  the  decision  was  made  known,  it  was  fol- 
lowed by  a  burst  of  popular  indignation.  A  public 
meeting  was  called  a  few  days  later,  and  an  address 
to  the  people  of  the  state  was  adopted,  said  to  have 
been  prepared  by  Melancton  Smith,  a  prominent 
lawyer  who  was  later  reputed  to  be  the  leader  of 
the  Anti-Federal  Party  in  the  state  convention 
which  ratified  the  national  constitution. 

227 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

In  the  address  it  was  acknowledged  that  there 
was  uncommon  abihty  and  learned  display  in  the 
argument,  and  it  conceded  the  independence  of 
courts  of  justice,  of  the  people,  and  the  Legisla- 
ture ;  but  it  denounced  the  decision  as  a  violation  of 
the  privileges  of  the  people,  and  an  act  of  judicial 
tyranny,  and  it  closed  with  a  resolve  to  carry  the 
case  on  behalf  of  the  people  to  the  Court  of  Errors. 

The  agitation  did  not  stop  with  the  adoption  of 
this  address,  but  the  subject  was  further  brought 
up  before  the  Legislature,  and  a  resolution  was 
passed  declaring  the  decision  to  be  subversive  of  all 
law  and  order,  and  calling  upon  the  council  of 
appointment  to  appoint  a^  mayor  and  recorder, 
persons  who  would  be  governed  by  the  law  of  the 
state. 

The  defendant,  in  view  of  the  threatened  appeal, 
compromised,  on  the  claim  that  the  decision  of 
Duane  settled  the  law  on  that  point,  and  an  act 
based  on  principles  above  set  forth  was  afterwards 
put  into  effect  by  a  motion  of  Hamilton  in  the 
Legislature,  in  1787.  He  also  had  the  original 
statute  upon  which  the  plaintiff  based  her  case 
repealed  the  same  year. 

ABLE  AND  UPRIGHT  JUDGES. 

Duane  continued  to  preside  in  this  court  until  he 
was  appointed  by  Washington,  after  the  United 
States  had  been  org"anized  in  1789,  as  district  judge 
of  New  York,  when  Colonel  Varick  succeeded  him 

228 


ABLE  AND  UPRIGHT  JUDGES. 

as  mayor.  The  latter  held  office  for  about  six  years, 
during  which  time  he  rendered  some  important 
decisions,  all  of  which  were  affirmed  by  the  Supreme 
Court.  Some  of  these  decisions  may  be  found  in 
Johnson's  Cases  in  the  first  volumes,  but  our  reports 
do  not  commence  until  ten  years  after  he  ceased  to 
act  in  the  capacity  of  mayor. 

For  the  next  thirty-five  years,  in  the  persons  of 
the  mayors  and  recorders  of  the  city  of  New  York, 
this  state  boasted  a  list  of  the  most  eminent  men  and 
lawyers  of  the  time;  to  this  there  was  but  one 
exception.  During  this  period,  the  mayors  of  the 
city  were  Edward  Livingston,  De  Witt  Clinton, 
Marinus  Willett,  Jacob  Radcliff  e  and  Cadwellader 
D.  Colden;  the  recorders  were  Samuel  Jones, 
James  Kent,  Richard  Harrison,  John  B.  Prevoost, 
Maturin  Livingston,  Pierce  G.  Van  Wyck,  Josiah 
Ogden  Hofi^man,  Jacob  Radcliff e,  Peter  A.  Jay 
and  Richard  Riker. 

RECORDER  AS  JUDGE  OF  MAYOR^S  COURT. 

While  De  Witt  Clinton  was  the  mayor  and 
Maturin  Livingston  was  recorder,  the  former, 
either  through  choice,  or  from  the  increasing  duties 
of  his  office,  ceased  to  preside  in  the  Mayor's  Court, 
and  from  that  time  until  1821,  the  recorder  sat  as 
the  presiding  judge  of  that  court,  and  the  mayor 
presided  in  the  Court  of  Sessions,  the  recorder  being 
the  recognized  head  of  the  one,  and  the  mayor  of  the 
other. 

229 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

OFFICIAL  DESIGNATION  OF  THE  COURT  OF  COMMON 

PLEAS. 

In  1821,  owing  to  the  increasing  importance  of 
the  Mayor's  Court,  and  the  mayor  having  long 
ceased  to  preside,  it  was  deemed  appropriate  that 
its  title  be  changed  from  "Mayor's  Court"  to 
"Court  of  Common  Pleas  for  the  City  and  County 
of  New  York." 

An  act  was  passed  which  effected  this  change, 
and  created  a  first  judge,  to  hold  his  office  during 
good  behavior,  or  until  he  should  attain  the  age  of 
sixty  years;  but  by  the  constitution  adopted  one 
year  later,  the  tenure  of  the  office  was  limited  to 
five  years,  and  the  power  of  appointment  was  vested 
in  the  governor.  The  mayor,  recorder  and  alder- 
men were  authorized  to  sit  in  it,  but  the  first  judge 
was  empowered  to  hold  court  without  them,  and  it 
was  made  his  especial  duty  to  hold  the  court. 

MAYOR  DEPRIVED  OF  JUDICIAL  POWER. 

John  T.  Irving  was  appointed  the  first  judge  of 
the  court,  and  upon  his  being  appointed,  Stephen 
Allen,  who  was  the  mayor,  ceased  to  preside  in  the 
Court  of  Sessions,  although  no  provision  to  that 
effect  was  contained  in  the  act. 

Recorder  Riker  who  had  sat  for  some  years  in  the 
Mayor's  Court,  took  the  mayor's  place  as  presiding 
judge  of  the  Sessions  and  Judge  Irving  presided 
alone  in  the  Court  of  Common  Pleas.    Neither  the 

230 


COURT  OF  SESSIONS. 

mayor,  recorder,  nor  the  aldermen,  although  author- 
ized to  do  so,  ever  took  any  part  in  the  court's 
proceedings  thereafter,  except  when  all  the  judges 
were  convened  in  what  was  denominated  a  County 
Court. 

This  tribunal,  composed  of  the  first  judge,  the 
mayor,  recorder,  and  all  the  aldermen,  was  occa- 
sionally convened  for  the  impeachment  and  trial  of 
officers  of  the  municipal  government,  the  first  judge 
acting  as  the  presiding  officer,  until  it  was  finally 
abolished  by  act  in  1826. 

JUDGE  IRVING. 

Judge  Irving  presided  alone  for  thirteen  years, 
during  which  period  very  eminent  and  learned 
members  of  the  bar  appeared  before  him  in  cases 
tried  in  the  court.  Irving  continued  to  preside  as 
first  judge  until  his  death,  serving  in  all,  seventeen 
3^ears.  He  was  a  man  who  was  honored  and 
respected  by  the  profession  as  a  whole;  he  was  a 
lover  of  justice,  and  withal,  a  good  business  man, 
having  a  weakness  for  letters,  like  his  famous 
brother,  Washington  Irving.  Upon  his  death,  the 
bar  erected  a  handsome  marble  tablet  in  the  court- 
room, to  his  memory. 

COURT  or  SESSIONS. 

In  1800,  the  terms  of  the  Court  of  Sessions  were 
directed  to  be  held  six  times  a  year,  and  in  1813, 
once  a  month. 

231 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

In  1850,  a  city  judge  was  created,  with  the  same 
powers  as  the  recorder.  In  1847,  the  power  of  the 
aldermen  to  sit  in  the  Court  of  Common  Pleas  was 
taken  away;  in  1853,  they  were  also  deprived  of 
their  right  to  sit  in  the  Court  of  Sessions. 

APPELLATE  JURISDICTION. 

Under  the  old  laws,  any  cause  might  be  removed 
from  the  Mayor's  Court  to  the  Supreme  Court, 
where  the  amount  involved  exceeded  twenty 
pounds,  but  in  1789,  an  act  was  passed  forbidding 
the  removal,  except  in  certain  cases,  unless  the 
amount  exceeded  one  hundred  pounds,  or  two  hun- 
dred and  fifty  dollars. 

In  1823,  the  amount  was  doubled.  In  1837,  it 
was  further  increased  to  twenty-five  hundred 
dollars  and  in  1844  the  power  to  remove  any  cause 
was  taken  away,  and  the  jurisdiction  of  the  court 
remained  thereafter  unlimited  as  to  amounts. 

JUDGES  OF  COMMON  PLEAS. 

In  1834,  an  associate  judge  of  the  Court  of  Com- 
mon Pleas  was  created,  who  was  vested  with  all  the 
powers  of  the  first  judge,  and  Michael  Ulshoeffer 
was  appointed  to  this  office.  In  1838,  upon  the 
death  of  Judge  Irving,  Michael  Ulshoeff*er  was 
appointed  judge,  and  Daniel  P.  Ingraham  asso- 
ciate judge  of  the  court.  In  1839,  an  additional 
associate  judge  was  created  and  vested  with  all  the 

232 


JUDGES  OF  COMMON  PLEAS. 

powers  of  the  two  other  judges,  and  William  Inglis 
was  appointed  to  hold  that  office. 

CONSTITUTIONAL  ENACTMENT. 

In  1844,  Charles  F.  Daly  was  appointed  in  place 
of  Judge  Inglis,  and  the  court  as  thus  constituted, 
of  a  first  judge  and  two  associates,  remained  in 
force  until  the  adoption  of  the  constitution  of  1846; 
by  that  instrument  the  Court  of  Common  Pleas  and 
Superior  Court  of  the  city  of  New  York,  were 
especially  excepted  from  the  general  judicial  re- 
organization of  the  state,  but  by  an  act  passed  in  the 
following  year  (Laws  1847 — 79)  it  was  provided 
that  the  terms  of  the  judges  of  both  courts  should 
expire  on  the  17th  of  January  next  ensuing,  and 
that  an  election  of  judges  by  the  people  for  each  of 
the  courts  should  take  place  at  the  general  elections ; 
that  the  terms  of  the  judges  elected  should  be  classi- 
fied in  terms  of  two,  four  and  six  years  respectively, 
to  be  determined  by  lot,  and  that  the  election  of  all 
judges  thereafter,  in  either  of  the  courts,  should  be 
for  a  term  of  six  years. 

In  June,  1847,  all  the  existing  judges  of  the 
Court  of  Common  Pleas  were  elected,  and  the  allot- 
ment of  terms  resulted  as  follows:  Michael 
Ulshoeffer,  two  years;  Daniel  P.  Ingraham,  four 
years;  Charles  P.  Daly,  six  years. 

In  1849,  Louis  B.  Woodruff  was  elected  in  place 
of  Ulshoeffer,  and  in  June,  1850,  Daniel  P.  Ingra- 
ham was  appointed  first  judge.     In  1851,  Judge 

233 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

Ingraham  was  re-elected  for  a  term  of  six  years, 
and  Charles  P.  Daly  was  elected  for  a  similar  term, 
in  1853. 

JURISDICTION  OF  COMMON  PLEAS. 

By  the  judiciary  act  of  1847,  by  the  code  passed 
in  1848,  and  as  amended  in  1849,  1851  and  1853,  the 
Court  of  Common  Pleas  exercised  unlimited  juris- 
diction, both  in  law  and  equity,  where  the 
defendants  resided  or  were  personally  served  with 
process  in  the  city  of  New  York,  or  where  one  or 
more  of  the  defendants  who  were  jointly  liable  on 
contract,  so  resided,  or  were  personally  served  in  the 
city. 

It  also  had  jurisdiction  against  corporations  cre- 
ated by  the  law  of  the  state,  who  transacted  their 
general  business  or  kept  an  office  for  the  transaction 
of  business  in  the  city  of  New  York;  and  against 
foreign  corporations  upon  any  cause  of  action  aris- 
ing within  the  state,  or  for  the  recovery  of  any  debt 
or  damages,  whether  liquidated  or  not,  arising  upon 
a  contract  made,  executed,  or  delivered  within  the 
state. 

By  the  code,  certain  actions  were  required  to  be 
tried  "in  the  county  where  the  subject-matter  of  the 
action  was  situated  or  the  cause  of  action  has  arisen 
in  that  county,  of  which  action  the  court  has  juris- 
diction, irrespective  of  the  residence  of  the  parties, 
or  the  personal  service  of  the  process." 

They  embraced  "  actions  for  the  recovery  of  real 

234 


JURISDICTION  OF  COMMON  PLEAS. 

property,  or  of  an  estate,  or  interest  therein,  or  for 
the  determination,  in  any  form,  of  such  right  or 
interest;  for  injuries  to  real  property,  for  the  pro- 
tection of  real  property,  for  the  foreclosure  of 
mortgage  on  real  property,  for  the  recovery  of 
personal  property  distrained,  for  the  recovery  of  a 
penalty  or  forfeiture  imposed  by  statute,  except 
where  imposed  for  an  offence  committed  on  a  lake, 
river  or  other  stream  of  water  situated  in  two  or 
more  counties,  in  which  case  the  action  might  be 
brought  in  any  of  the  counties  bordering  on  such 
water,  and  opposite  to  the  place  where  the  offence 
was  committed." 

It  also  had  jurisdiction  in  all  "actions  against  a 
public  officer,  or  person  specially  delegated  to  per- 
form his  duties,  or  for  an  act  done  by  him  in  virtue 
of  his  office,  or  against  a  person  who,  by  his  com- 
mand or  in  his  aid,  shall  do  anything  touching  the 
duties  of  such  office" ;  and  by  the  judiciary  act,  and 
under  a  special  act  passed  in  1854  (Laws  of  1854 — 
464),  "the  court  also  possessed  jurisdiction  in  spe- 
cial proceedings  for  the  disposition  of  real  estate 
of  infants,  where  such  real  estate  is  situated  in  New 
York  City ;  the  care  and  custody  of  the  persons  and 
estates  of  lunatics,  persons  of  unsound  mind,  or 
habitual  drunkards,  residing  within  the  city;  the 
mortgage  or  sale  of  the  real  estate  of  religious 
corporations,  and  in  the  adjustment  of  dower  in 
lands  within  the  city." 

Any  appeal  from  its  judgment  or  determination, 

235 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

except  in  an  action  originally  commenced  in  the 
"Marine  or  the  Justices'  Court,  lies  directly  to  the 
court  of  last  resort — the  Court  of  Appeals."  The 
code  made  the  Court  of  Common  Pleas  the  court  of 
refuge  from  the  judgment  of  the  Marine  or  the 
Justices'  Court  of  the  city,  and  a  decision  by  it  of 
such  an  appeal  was  final. 

"It  also  has  exclusive  jurisdiction  upon  liens 
against  real  estate  by  virtue  of  an  act  passed  in 
1851,  except  that  when  the  lien  is  docketed  for  a 
sum  not  exceeding  one  hundred  dollars,  the  pro- 
ceedings may  be  commenced  in  the  Marine  Court  or 
in  the  Justices'  Court  in  the  district  where  the  dwell- 
ing is  situated."     (Laws  of  1851 — 953.) 

"It  also  has  exclusive  power  of  remitting  fines 
imposed  by  the  Courts  of  Sessions  as  penalties,  or  of 
relieving  against  or  remitting  judgment  entered 
upon  forfeited  recognizances  under  the  statutes. 
(Laws  of  1844—469,  Laws  of  1845—250,  Laws  of 
1854 — 464.)  It  also  has  jurisdiction  of  proceed- 
ings supplementary  to  execution  upon  judgments 
recovered  in  the  Marine  and  District  Courts  of 
the  city,  where  a  transcript  of  the  judgment  was 
docketed  with  the  County  Clerk  and  the  amount 
recovered  exceeded  (exclusive  of  costs)  twenty-five 
dollars." 

In  1854,  an  act  was  passed  creating  a  clerk  of  the 
court  to  be  appointed  by  the  judges,  the  clerk  of 
the  county  having  theretofore  acted  as  both  clerk 
of  the  Supreme  Court  and  of  the  Court  of  Common 

236 


JURISDICTION  OF  COMMON   PLEAS. 

Pleas;  and,  to  remove  all  doubt  as  to  the  jurisdic- 
tion of  the  court,  it  re-affirmed  its  powers  in 
remitting  fines  and  recognizances;  in  creating  and 
discharging  dockets  of  liens  and  judgments  entered 
upon  recognizances,  it  affirmed  all  its  previous 
powers ;  it  conferred  upon  it  all  the  powers  then  and 
thereafter  to  be  vested  in  the  county  courts,  and 
generally  confirmed  its  powers  as  a  court  of  original 
and  general  jurisdiction  to  the  same  extent  as  they 
were  had  and  exercised  before  the  adoption  of  the 
constitution  of  1846.     (Laws  of  1854 — 464.) 

COURT   ABOLISHED. 

Article  VI,  section  5,  of  the  constitution  of  1895 
reads  as  follows:  ''The  Superior  Court  of  the  city 
of  New  York,  the  Court  of  Common  Pleas  for  the 
city  and  county  of  New  York,  the  Superior  Court 
of  Buffalo,  and  the  City  Court  of  Brooklyn,  are 
abolished  from  and  after  the  first  day  of  January, 
1896,  and  thereupon  the  seals,  records,  papers  and 
documents  of,  or  belongig  to  such  courts,  shall  be 
deposited  in  the  offices  of  the  clerks  of  the  several 
counties  in  which  said  courts  now  exist;  and  all 
actions  and  proceedings  then  pending  in  such 
courts  shall  be  transferred  to  the  Supreme  Court 
for  hearing  and  determination .  .  .  . " 


237 


CHAPTER  XVII 


THE  SUPREME  COURT. 


Recognition  of  Court — Regulations  of  Court 
— First  Session  of  Court — Salary — Terms 
OF  Court — Court  Provisions — Venue — Addi- 
tional Judges — Court  Rules — Chancellor 
Kent — State  Reporter — ^Duties  of  Clerk — 
New  Terms  of  Court — Judges^  Salaries  In- 
creased— Constitutional  Enactment — Offi- 
cial Tenure  of  Office — Change  in  Terms  of 
Court — Clerks — Reporter — Office  of  Judge 
Made  Electro: — Popular  Election — Grad- 
ual Evolution  of  Supreme  Court — Consti- 
tution OF  1846 — Jurisdictional  Changes — 
Constitution  of  1895 — Supreme  Court,  How 
Constituted — Judicial  Districts — Terms  of 
Office^  Vacancies^  How  Filled — ^Judges  to 
Hold  no  Other  Office — Removal  of  Judges 
—Compensation^  Age^  Restriction^  Assign- 
ment BY  Governor. 

RECOGNITION  OF  COURT. 

The  convention  that  was  convened  for  the  pur- 
pose of  ratifying  the  constitution  of  1777,  adopted 
at  the  outset  of  the  American  Revolution,  made  no 

239 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

alterations  in  the  manner  of  selecting  judges  of  the 
Supreme  Court.  However,  a  council  of  revision 
and  appointment  was  elected,  to  consist  of  the  gov- 
ernor, the  chancellor,  the  justices  of  the  SujDreme 
Court,  and  the  senators.  The  constitution  recog- 
nized the  existence  of  the  Supreme  Court,  and  on 
May  3rd,  1777,  John  Jay  was  elected  chief -justice, 
and  Robert  Yates  and  John  Marin  Scott,  associate 
judges. 

Scott  declined  the  office,  and  John  Schloss  Ho- 
bart,  who  had  received  the  next  largest  number  of 
votes,  was  declared  elected  to  the  office  of  associate 
judge.  The  convention  also  elected  Robert  R. 
Livingston  as  first  chancellor  and  Egbert  Benson, 
first  attorney-general,  all  of  whom  were  approved 
by  the  council  of  appointment. 

REGULATIONS  OF  COURT. 

The  judges  of  the  Supreme  Court  were  to  hold 
office  during  good  behavior,  and  until  the  age  of 
sixty  years,  and  all  proceedings  to  which  the  public 
was  a  party  were  to  be  brought  in  the  name  of  the 
People  of  the  State  of  New  York,  instead  of  in  the 
name  of  the  King  as  formerly. 

On  the  5th  of  June,  1777,  it  was  decided  that 
because  of  the  occupancy  by  the  enemy,  of  southern 
New  York,  the  term  of  the  Supreme  Court  should 
be  held  at  Kingston,  as  in  1774,  until  the  Legisla- 
ture should  see  fit  to  make  a  change. 


240 


TERMS  OF  COURT. 


FIRST  SESSION  OF  COURT. 


On  the  9th  of  August,  1777,  the  first  session  of 
the  Supreme  Court  of  the  State  of  New  York  was 
held  at  Kingston,  and  Chief-Justice  John  Jay  de- 
Mvered  the  first  charge  to  the  grand  jury. 

SAI.ARY. 

In  1778,  the  judges  were  empowered  to  devise  a 
seal,  and  on  April  4th,  of  the  same  year,  the  salaries 
of  the  judges  were  fixed.  The  chief -justice  was  to 
receive  three  hundred  pounds  or  seven  hundred  and 
fifty  dollars.  New  York  currency,  and  the  puisne 
judges,  two  hundred  pounds  or  five  hundred  dol- 
lars. New  York  currency,  and  forty  shillings  per 
day  for  attendance  on  the  circuits  and  oyer  and 
terminer,  besides  their  travel  fees. 

In  October,  1779,  Richard  Morris  was  appointed 
to  the  ofiice  of  chief -justice,  made  vacant  by  the 
appointment  of  John  Jay  as  United  States  ambas- 
sador to  the  Spanish  Court. 

TERMS  OF  COURT. 

The  first  session  of  the  Supreme  Court  in  its 
Oyer  and  Terminer  branch  was  held  in  New  York 
City  after  the  Revolutionary  War,  on  May  18th, 
1784.  James  Duane,  who  was  mayor,  and  Judge 
Hobart,  commissioned  for  the  oyer  and  terminer, 
delivered  the  charge  to  the  grand  jury. 

241 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

The  terms  of  the  Supreme  Court  for  the  differ- 
ent counties  were  settled  in  1785  by  act  of  the 
Legislature.  Two  terms  were  to  be  held  each  year 
in  New  York,  and  two  in  Albany.  The  court  was 
to  sit  on  the  third  Tuesdays  of  January  and  April 
at  New  York,  and  on  the  last  Tuesday  in  July,  and 
third  Tuesday  in  October  in  Albany.  The  April 
and  October  terms  were  to  continue  for  three  weeks 
and  the  January  and  July  terms  for  two. 

COURT   PROVISIONS. 

It  was  at  the  same  time  provided  that  the  office 
of  the  clerk  of  the  court  should  be  at  New  York, 
and  that  of  the  clerk's  deputy  at  Albany,  the  latter 
to  be  appointed  by  the  clerk.  All  the  court  records 
and  papers  at  Albany  were  to  be  removed  once 
every  six  months,  to  the  New  York  office,  and  there 
placed  on  file. 

VENUE. 

On  the  19th  of  April,  1786,  an  act  passed  the 
Legislature  to  the  effect  that  all  issues  joined  in 
the  Supreme  Court  should  be  tried  in  the  counties 
where  the  lands  were  situated,  or  the  cause  of  action 
arose,  or  the  offence  was  committed,  unless  the 
court  should  order  a  trial  at  the  bar  of  the  court,  a 
practice  resorted  to  only  in  cases  of  great  difficulty, 
or  wherein  an  extended  examination  was  required. 
This  act  was  not  to  apply  to  an  action  merely 
transitory,  nor  to  prevent  the  court  from  ordering 
trials  by  foreign  juries. 

242 


COURT  RULES. 


ADDITIONAL  JUDGES. 


In  1792  an  additional  associate  judge,  in  the 
person  of  Morgan  Lewis,  was  added  to  the  bench. 
In  1794  Egbert  Benson  was  made  the  fifth  judge 
of  the  court,  thus  increasing  the  number  of  Su- 
preme Court  judges  to  what  it  had  been  under  the 
original  act  of  1691. 

COURT  RULES. 

Judge  Benson  drew  up  the  first  rules  of  court  at 
the  April  term  of  1796.  These  rules  were  the  foun- 
dation of  all  the  subsequent  rules  for  the  regulation 
of  the  Supreme  Court  procedure. 

These  original  rules  provided  that  any  person 
might  practice  before  it  as  an  attorney,  who  had 
served  seven  years  actual  clerkship  with  a  practicing 
attorney.  A  period  not  exceeding  four  years  was 
deducted  from  this  requirement,  if  the  applicant  for 
admission  to  practice  had  spent  the  time  in  classical 
studies  after  the  age  of  fourteen. 

An  attorney  who  had  four  years  practice  before 
the  court,  could  be  admitted  to  practice  as  counsel. 
This  period  was  later  changed  to  three  years  at  the 
November  term,  1804. 

On  Februarj^  10th,  1797,  it  was  enacted  that  the 
judges  of  the  April  term  of  each  year  designate  one 
of  their  number  to  hold  Circuit  Courts,  one  in  the 
western,  one  in  the  eastern,  one  in  the  middle,  and 
one  in  the  southern  districts  of  the  state. 

243 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

In  this  same  year  the  judges'  salaries  were  fixed 
at  two  thousand  dollars  per  annum.  The  salary  had 
been  gradually  increased  for  the  ten  years  last  past. 

On  the  10th  of  March,  1797,  the  judges  were 
authorized  to  appoint  an  additional  clerk,  with  an 
office  in  Albany,  and  to  direct  from  time  to  time, 
the  removal  from  the  clerk's  office  in  the  city  of 
New  York,  to  the  office  in  Albany,  of  any  record 
or  paper  deemed  advisable.  The  judge  was  also  to 
prepare  an  additional  seal  for  use  in  the  office  at 
Albany. 

CHANCELLOR  KENT. 

In  1798  James  Kent,  whose  name  has  since  be- 
come synonymous  with  early  American  jurispru- 
dence, as  the  author  of  "Kent's  Commentaries," 
and  as  a  great  chancellor,  was  appointed  a  justice  of 
the  court.  He  initiated  the  custom,  since  followed, 
of  handing  down  written  opinions  in  cases  which 
might  be  later  cited  as  precedents  or  leading  cases. 

STATE  REPORTER. 

On  the  7th  of  April,  1804,  a  legislative  enact- 
ment authorized  the  justices  of  the  Supreme  Court 
to  appoint  a  reporter  with  a  fixed  salary  of  eight 
hundred  fifty  dollars  per  annum,  whose  duty 
it  should  be  to  report  and  publish  all  decisions  of 
the  Supreme  Court,  and  of  the  Court  for  the  Cor- 
rection of  Errors.  George  Caines  was  accordingly 
appointed  the  first  reporter. 

244 


JUDGES    SALARIES  INCREASED. 


DUTIES  OF  CLERK. 

On  the  4th  of  April,  1807,  the  judges  were 
authorized,  in  their  discretion,  to  estabhsh  an  addi- 
tional clerk's  office  in  the  county  of  Oneida,  and 
appoint  a  clerk.  Accordingly  the  court  clerk 
appointed  a  clerk  to  maintain  an  office  in  the  city  of 
Utica.  It  was  made  the  duty  of  the  clerks  of  the 
three  counties  to  deliver  to  each  other,  on  or  before 
the  last  day  of  every  term,  at  the  place  where  the 
court  should  then  be  held,  a  transcript  of  the  docket 
of  all  judgments  that  had  been  docketed  in  each 
office  during  the  preceding  term  and  vacation. 

NEW   TERMS   OF   COURT. 

It  became  the  law  that  after  the  30th  of  April, 
1811,  the  terms  of  court  w^ere  to  be  held  on  the  third 
]Monday  in  October  and  the  first  Mondays  in  Janu- 
ary, JNIay  and  August,  and  thence  continued  every 
day  except  Sunday,  until  and  including  Saturday 
in  the  next  ensuing  week.  The  ]May  and  October 
terms  were  to  be  held  at  New  York,  and  the  Janu- 
ary and  August  terms  at  Albany. 

JUDGES^  SAI^RIES  INCREASED. 

The  salaries  of  the  judges  were  again  increased 
on  the  19th  of  June,  1812,  when  it  was  enacted  that 
they  were  to  receive  the  sum  of  three  thousand 
dollars  each,  for  three  years.    Further  changes  were 

245 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

made  as  follows:  In  1816  the  salary  was  increased 
to  four  thousand  five  hundred  dollars,  with  no  time 
limit;  in  1820,  the  salary  was  reduced  to  three  thou- 
sand five  hundred  dollars,  indefinitely,  and  in  1821 
further  indefinitely  reduced  to  three  thousand  dol- 
lars. 

CONSTITUTIONAL  ENACTMENTS. 

Under  the  constitution  of  1821,  no  alteration  was 
made  in  the  manner  of  selecting  justices  of  the  Su- 
preme Court,  and  they  continued  to  be  appointed 
by  the  governor  with  the  consent  of  the  Senate 
(Constitution  of  1821,  Art.  IV,  sec.  7) . 

However,  some  important  changes  were  wrought 
by  the  constitution  of  1821.  By  a  provision  therein 
contained,  the  judges  of  the  Supreme  Court  were 
to  convene  four  times  a  year  to  review  their  deci- 
sions and  determine  questions  of  law.  Each  justice 
was  empowered  to  hold  Circuit  Courts,  as  were  cir- 
cuit judges,  and  might  also  preside  in  Oyer  and 
Terminer.  All  processes  issuing  from  the  Supreme 
Court  must,  by  law,  be  in  the  name  of  the  chief- 
justice,  or  if  there  were  none,  in  the  name  of  any 
justice  of  the  court. 

To  the  court  was  given  the  quasi-legislative 
power  to  amend  practice  in  cases  not  covered  by 
statute ;  to  revise  its  rules  every  seven  years ;  to  ulti- 
mately abolish  fictitious  and  unnecessary  process 
and  proceedings,  expedite  decisions  of  causes, 
diminish  costs,  and  remedy  abuses  and  imperfec- 
tions in  practice. 

246 


APPOINTMENT  OF  JUDGES. 


OFFICIAL  TENURE  OF  JUDGES. 

The  procedure  followed  in  the  selection  and 
choice  of  judges  was  appointive  and  not  elective; 
the  persons  nominated  for  this  honor  were  ap- 
pointed by  the  governor,  by  and  with  the  advice  and 
consent  of  the  senate,  to  hold  office  during  good 
behavior,  or  until  sixty  years  of  age. 

If  guilty  of  malfeasance  in  office,  or  impeached 
for  other  cause,  their  removal  from  the  bench  was 
procured  by  a  joint  resolution  of  the  Legislature, 
concurred  in  by  a  two-third  majority  vote  of  the 
senate  and  assembly. 

During  their  incumbency  of  office  the  judges 
were  disqualified  from  holding  or  participating  in 
any  other  office ;  they  were  exempted  from  military 
service ;  were  prohibited  from  receiving  fees  or  per- 
quisites, and  precluded  from  sitting  in  any  case  in 
which  they  were  directly  or  indirectly  interested,  or 
from  being  a  party  to  the  decision  of  any  case 
passed  on  by  them  in  any  other  court,  and  enjoined 
from  practising  as  attorneys  and  counsellors,  or 
being  associated  with,  or  partners  of,  those  who  had 
previously  appeared  in  such  case. 

The  number  of  judges  was  later  reduced  to 
three,  and  from  1823,  their  annual  salary  was  two 
thousand  dollars,  which  was  in  1835  increased  to 
two  thousand  five  hundred  dollars,  and  in  1839  to 
three  thousand  dollars.     By  an  act  of  1835,  the 

247 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

compensation  of  judges  for  travel  and  attendance, 
as  members  of  the  Court  of  Errors,  was  abolished. 

CHANGE  IN  TERMS  OF  COURT. 

By  virtue  of  an  act  passed  in  1823,  the  terms  of 
court  for  the  city  of  New  York  were  to  he  held  on 
the  third  Mondays  of  FebiTiary  and  October,  and 
on  the  first  Mondays  of  May  and  August. 

An  August  term  was  appointed  for  the  city  of 
Utica;  terms  in  February  and  October  were  ap- 
pointed for  Albany.  If  the  business  of  court  so 
warranted,  the  terms  of  court  continued  for  four 
weeks,  otherwise,  and  in  case  of  no  returns,  the  term 
was  terminated  at  the  end  of  two  weeks. 

The  terms  of  court  were  subsequently  set  for  the 
first  Mondays  of  January,  May  and  July,  and  the 
third  Monday  of  October.  The  January  and  Octo- 
ber terms  were  to  be  held  at  the  Capitol  in  Albany, 
the  May  term  at  the  City  Hall,  New  York,  and  the 
July  term  at  the  Academy  in  Utica. 

The  terms  of  court  lasted  for  five  weeks,  but  no 
argument  was  heard  during  the  last  week,  except 
by  consent  of  parties  and  counsel,  and  no  process 
issued  or  returned  after  the  second  Saturday,  ex- 
cept subpoenas,  attachments,  and  habeas  corpus. 

In  1841,  the  October  term  was  changed  from  Al- 
bany to  Rochester,  and  one  of  the  justices  required 
to  sit  at  the  Capitol  in  Albany,  and  hear  and  decide 
such  non-enumerated  cases  as  should  arise,  except 
those  to  be  heard  at  term  time. 

248 


OFFICE  OF  JUDGE  MADE  ELECTIVE. 


CLERKS. 

The  clerks'  offices  were  continued  at  New  York, 
Albany,  and  Utica,  but  in  1829  a  new  one  was 
established  at  Canandaigua,  which  in  1831  was  re- 
moved to  Geneva,  and  in  1841  to  Rochester. 

Each  clerk  was  furnished  with  an  official  seal  of 
office,  was  appointed  by  the  justices  of  court  for 
three  years,  unless  sooner  removed,  and  was  allowed 
to  select  and  appoint  his  own  deputy.  Court  papers 
might  be  transferred  from  one  office  to  another, 
upon  the  justice's  order. 

REPORTER. 

« 

By  concurrence  of  the  lieutenant-governor,  chan- 
cellor, and  chief -justice,  a  reporter  for  the  Supreme 
Court  and  the  Court  of  Errors  was  appointed,  who 
was  to  be  a  counsellor  at  law  or  in  chancery,  of  at 
least  fivie  years'  standing. 

OFFICE   OF   JUDGE   MADE   ELECTIVE. 

Under  the  constitution  adopted  in  1821  for  the 
state  of  New  York,  a  provision  was  embodied  for 
the  popular  election  of  the  justices  of  the  Supreme 
Court,  in  Art.  VI,  sec.  12,  thereof,  and  also  by  the 
amendments  of  1869,  Art.  VI,  sec.  13. 

In  the  constitutional  amendments  of  1869, 
was  one  for  submitting  the  question  of  the  election 
of  judges  to  popular  vote.    This  was  done  in  1873, 

249 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

with  the  popular  verdict  in  favor  of  the  election, 
rather  than  the  appointment  of  judges. 

POPULAR  ELECTION. 

The  American  judiciary,  with  the  exception  of 
the  United  States  Supreme  Court,  and  the  filling  of 
vacancies  due  to  the  death  or  disability  of  judges, 
rests  upon  an  elective  basis ;  and  so  strongly  repug- 
nant are  democratic  American  institutions  to  what- 
ever savors  of  aristocracy,  and  tends  to  abridge  or 
trammel  the  voice  of  the  people,  that  even  the 
organization  of  the  Supreme  Court  of  the  United 
States,  as  now  constituted,  has  furnished  political 
capital  to  agitators  and  people's  rights  advocates, 
in  recent  national  political  campaigns. 

GRADUAL  EVOLUTION  OF  THE  SUPREME  COURT. 

Besides  a  change  in  the  manner  of  selecting 
judges,  the  number,  terms  of  office,  qualifications 
and  compensation  of  judges  of  the  Supreme  Court 
have  undergone  modifications. 

Originally  there  were  but  three  justices  of  the 
Supreme  Court,  one  chief -justice  and  two  associate 
justices,  who  by  the  constitution  of  1777  (Art. 
XXIV)  were  authorized  to  "hold  their  offices  dur- 
ing good  behavior  or  until  they  shall  respectively 
attain  the  age  of  sixty  years."  No  change  was 
wrought  by  the  constitution  of  1821,  in  the  number 
of  judges  of  the  Supreme  Court  or  their  tenure  of 
office. 

250 


ADDITIONAL  JUDGES. 
UNDER  THE  CONSTITUTION  OF  1846. 

Under  the  constitution  of  1846  (Art.  VI,  sec.  4) , 
the  state  was  divided  into  eight  judicial  districts 
with  four  justices  to  each  district,  except  that  com- 
posed of  the  city  of  New  York,  to  which  were 
assigned  five  justices,  by  article  VI,  section  6,  of 
the  constitutional  amendments  of  1869. 

Thus  was  the  number  of  judges,  originally  three, 
by  1869  increased  to  thirty-three;  and  at  present  by 
virtue  of  the  constitution  of  1895,  "  The  Supreme 
Court  is  composed  of  the  justices  now  in  office,  of 
the  judges  of  the  Superior  Courts  of  the  cities  of 
New  York  and  Buffalo,  of  the  Court  of  Common 
Pleas  for  the  city  and  county  of  New  York,  and  the 
City  Court  of  Brooklyn,  which  have  been  abolished, 
and  of  twelve  additional  judges  from  the  eight 
judicial  districts."  (Constitution  1895,  Art.  VI, 
sec.  1.) 

Under  the  constitution  of  1846  it  was  provided 
that  judges  of  the  Supreme  Court  should  hold 
office  for  ten  years  (Art.  VI,  sec.  4)  and  the  consti- 
tutional amendments  re-affirmed  the  provisions  of 
the  constitution  of  1846  relating  to  the  term  of 
office.     (Constitution  of  1895,  Art.  VI,  sec.  4.) 

Under  all  the  constitutions  since  that  of  1777, 
adequate  provision  has  been  made  for  the  removal 
of  delinquent  judges,  for  the  filling  of  vacancies  in 
office,  and  against  judges  holding  other  offices  of 
public  trust. 

251 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 


JURISDICTIONAL  CHANGES. 

Having  thus  traced  the  evolution  and  develop- 
ment in  the  Supreme  Court  organization  from  its 
primitive  beginnings,  it  is  proper  and  interesting  to 
briefly  note  the  modifications  in  its  jurisdiction  and 
powers. 

Originally  the  Supreme  Court  had  jurisdiction 
over  civil  and  criminal  matters,  co-extensive  with 
that  of  the  King's  Bench  and  Common  Pleas  of 
England.  Its  jurisdictional  amount  in  civil  cases 
was  twenty  pounds,  or  about  one  hundred  dollars; 
to-day  it  is  many  times  that  amount. 

The  Supreme  Court  still  has  jurisdiction  of  a 
civil  and  criminal  nature,  as  originally,  but  its  civil 
jurisdiction  has  been  circumscribed  as  to  amount. 

Under  the  constitution  of  1821,  article  V,  section 
5,  provision  was  made  for  Circuit  Courts  for  each 
of  the  circuits  into  which  the  Legislature  should 
divide  the  state.  For  each  of  such  circuits,  which 
were  to  be  not  less  than  four  nor  more  than  eight,  a 
circuit  judge  was  provided,  who  was  chosen,  held 
office,  and  exercised  authority  similar  to  Supreme 
Court  justices. 

Under  the  amendments  of  the  constitution  of 
1846,  adopted  in  1869,  provision  was  made  for  the 
holding  of  general  and  special  terms  of  the  Su- 
preme Court,  and  justices  of  the  Supreme  Court 
were  empowered  to  preside  over  Special  Terms, 
Circuit  Courts,  and  Courts  of  Oyer  and  Terminer. 

252 


JURISDICTIONAL   CHANGES. 

Circuit  Courts  and  Courts  of  Oyer  and  Ter- 
miner, which  existed  since  colonial  times,  were  abol- 
ished by  tfte  constitution  of  1894,  and  their  jurisdic- 
tion was  thereby  conferred  upon  the  Supreme 
Court.  Xumerous  other  courts  of  a  subordinate 
nature,  before  enumerated  (Art.  VI,  sec.  5),  were 
abolished  by  the  present  constitution,  and  their  jur- 
isdiction transferred  to  the  Supreme  Court. 

We  have  thus  roughly  outlined  the  development 
of  the  Supreme  Court  from  its  rudimentary  stages, 
noting  the  gradual  changes  in  its  organization  and 
jurisdiction  from  the  time  when  its  justices,  orig- 
inally three  in  number,  were  appointed,  to  the 
present  time,  when  its  justices,  numbering  seventy- 
six,  are  elected. 

JNIerely  directing  attention  to  the  abolition  of 
many  courts  long  existing,  as  subsidiary  to  the 
Supreme  Court,  and  the  vesting  of  their  jurisdic- 
tional powers  in  those  of  the  Supreme  Court,  and 
noting  the  substitution  of  the  Appellate  Division  of 
the  Supreme  Court,  for  the  General  Term  of  for- 
mer times,  it  may  not  be  inappropriate  to  append 
article  VI  entire  of  the  constitution  of  1894,  pro- 
viding for  the  organization  and  powers  of  the  judi- 
ciary^ of  the  state  of  Xew  York,  leaving  the  reader 
to  draw  such  further  conclusions  respecting  the 
evolution  of  the  Supreme  Court  as  it  will  undoubt- 
edly suggest. 


253 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

SUPREME    COURT HOW    CONSTITUTED JUDICIAL 

DISTRICTS. 

Article  VI,  section  1,  of  the  constitution  of 
1894  reads  as  follows: 

"  The  Supreme  Court  is  continued  with  general 
jurisdiction  in  law  and  equity,  subject  to  such  ap- 
pellate jurisdiction  of  the  Court  of  Appeals  as  now 
is  or  may  be  prescribed  by  law  not  inconsistent  with 
this  article.  The  existing  judicial  districts  of  the 
State  are  continued  until  changed  as  hereafter  pro- 
vided. The  Supreme  Court  shall  consist  of  the 
justices  now  in  office,  and  of  the  judges  transferred 
thereto  by  the  fifth  section  of  this  article,  all  of 
whom  shall  continue  to  be  justices  of  the  Supreme 
Court  during  their  respective  terms,  and  of  twelve 
additional  justices  who  shall  reside  in,  and  be  chosen 
by  the  electors  of,  the  several  existing  judicial  dis- 
tricts, three  in  the  first  district,  three  in  the  second, 
and  one  in  each  of  the  other  districts;  and  of  their 
successors.  The  successors  of  said  justices  shall 
be  chosen  by  the  electors  of  their  respective  judicial 
districts.  The  Legislature  may  alter  the  judicial 
districts  once  after  every  enumeration  under  the 
constitution,  of  the  inhabitants  of  the  State,  and 
thereupon  re-apportion  the  justices  to  be  thereafter 
elected  in  the  districts  so  altered." 

TERMS  OF  OFFICE VACANCIES^  HOW  FILLED. 

In  relation  to  terms  of  office  and  vacancies,  sec- 
tion 4  of  the  same  article  says: 

254 


REMOVAL  OF  JUDGES. 

"  The  official  terms  of  the  justices  of  the  Su- 
preme Court  shall  be  fourteen  years  from  and  in- 
cluding the  first  day  of  January  next  after  their 
election.  When  a  vacancy  shall  occur  otherwise 
than  by  expiration  of  term  in  the  office  of  justice 
of  the  Supreme  Court,  the  same  shall  be  filled  for 
a  full  term,  at  the  next  general  election,  happening 
not  less  than  three  months  after  such  vacancy  oc- 
curs ;  and,  until  the  vacancy  shall  be  filled,  the  gov- 
ernor by  and  ^^ith  the  advice  and  consent  of  the 
senate,  if  the  senate  shall  be  in  session,  or  if  not  in 
session,  the  governor,  may  fill  such  vacancy  by  ap- 
pointment, which  shall  continue  until  and  including 
the  last  day  of  December  next  after  the  election  at 
which  the  vacancy  shall  be  filled." 

JUDGES  TO  HOLD  NO  OTHER  OFFICE. 

Section  10  prohibits  judges  to  hold  any  other 
office,  as  follows: 

"  The  judges  of  the  Court  of  Appeals  and  the 
justices  of  the  Supreme  Court  shall  not  hold  any 
other  office  or  public  ti-ust.  All  votes  for  any  of 
them,  for  any  other  than  a  judicial  office,  given  by 
the  Legislature  or  the  people,  shall  be  void." 

REMOVAL  OF  JUDGES. 

Section  11  treats  of  removal  of  judges  from 
office: 

"  Judges  of  the  Court  of  Appeals  and  justices  of 
the  Supreme  Court  may  be  removed  by  concurrent 

255 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

resolution  of  both  houses  of  the  Legislature,  if  two- 
thirds  of  all  the  members  elected  to  each  house  con- 
cur therein.  All  other  judicial  officers,  except 
justices  of  the  peace  and  judges  or  justices  of  in- 
ferior courts  not  of  record,  may  be  removed  by  the 
senate,  on  the  recommendation  of  the  governor,  if 
two-thirds  of  all  the  members  elected  to  the  senate 
concur  therein.  But  no  officer  shall  be  removed 
by  virtue  of  this  section  except  for  cause,  which 
shall  be  entered  on  the  journals,  nor  unless  he  shall 
have  been  served  with  a  statement  of  the  cause 
alleged,  and  shall  have  had  an  opportunity  to  be 
heard.  On  the  question  of  removal,  the  yeas  and 
nays  shall  be  entered  on  the  journal." 

COMPENSATION^    AGE    RESTRICTION^    ASSIGNMENT    BY 
GOVERNOR. 

Regarding  salary,  age,  and  assignment  by  gov- 
ernor, we  refer  to  section  12: 

"  The  judges  and  justices  hereinbefore  men- 
tioned shall  receive  for  their  services  a  compensa- 
tion established  by  law,  which  shall  not  be  increased 
or  diminished  during  their  official  terms,  except  as 
provided  in  section  five  of  this  article.  No  person 
shall  hold  the  office  of  judge  or  justice  of  any  court 
longer  than  until  and  including  the  last  day  of  De- 
cember next  after  he  shall  be  seventy  years  of  age. 
No  judge  or  justice  elected  after  the  first  day  of 
January,  one  thousand  eight  hundred  and  ninety- 
four,  shall  be  entitled  to  receive  any  compensation 

256 


REMOVAL  or  JUDGES. 

after  the  last  day  of  December  next  after  he  shall 
be  seventy  years  of  age,  but  the  compensation  of 
every  judge  of  the  Court  of  Appeals  or  justice  of 
the  Supreme  Court  elected  prior  to  the  first  day  of 
January,  one  thousand  eight  hundred  and  ninety- 
four,  whose  term  of  office  has  been,  or  whose  pres- 
ent term  of  office  shall  be,  so  abridged,  and  who 
shall  have  served  as  such  judge  or  justice  ten  years 
or  more,  shall  be  continued  during  the  remainder  of 
the  term  for  which  he  was  elected,  but  any  such 
judge  or  justice  may,  with  his  consent,  be  assigned 
by  the  governor,  from  time  to  time,  to  any  duty  in 
the  Supreme  Court  while  his  compensation  is  so 
continued." 


257 


CHAPTER  XVIII. 


COURT  OF  CHANCERY. 


Existence  Recognized  —  Re-organization  of 
Court — Successi\t:  Chancellors — Written 
Opinions  —  Chancellor  Walworth  —  Last 
Chancellor — Effect  of  Constitution  of 
1821 — Vice-Chancellor  for  First  Circuit — 
Court  of  Chancery  Abolished. 

existence  recognized. 

The  original  constitution  of  1777  took  cogni- 
zance of  the  Court  of  Chancery  as  an  estabUshed 
and  properly  existing  tribunal,  but  appointed  Rob- 
bert  R.  Livingston  as  the  first  constitutional  chan- 
cellor, and  on  October  17th,  1777,  he  was  formally 
commissioned  by  the  council  of  appointment. 

The  constitution  provided  that  the  chancellor 
should  hold  no  other  office,  except  that  of  delegate 
to  General  Congress  upon  special  occasions — but 
if  elected  or  appointed  to  any  other  office,  he  was 
to  exercise  his  option  as  to  which  office  he  choose. 
Livingston  was  re-appointed  to  the  chancellorship 
on  June  22nd,  1783,  because  some  doubt  had  arisen 
as  to  his  vacation  of  the  office  of  chancellor,  upon 
his  appointment  to  the  secretaryship  of  foreign 
affairs,  in  1781. 

259 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 


RE-ORGANIZATION  OF  COURT. 

In  May,  1788,  the  Court  of  Chancery  was  re- 
organized by  the  Convention  of  Representatives  of 
the  State  of  New  York.  Masters  and  examiners 
were  to  be  appointed  by  the  council  of  appoint- 
ment, and  register  and  clerks  by  the  chancellor. 
The  office  of  assistant  register  was  established  in 
New  York  City,  in  1814. 

SUCCESSIVE   CHANCELLORS. 

The  first  rules  of  court  were  framed  in  1787  by 
Livingston,  who  continued  in  office  as  chancellor 
until  1801,  when  he  resigned  upon  his  appoint- 
ment as  minister  to  France.  He  left  no  writ- 
ten records.  His  successor  was  John  Lansing, 
Jr.,  who  was  at  this  time  chief -justice  of  the  Su- 
preme Court;  he  served  until  October,  1814,  when 
he  was  retired  by  the  age  limit  of  sixty  years. 

Lansing  was  succeeded  by  the  illustrious  James 
Ivent,  already  alluded  to  in  the  main  text  of  our 
work  as  the  author  of  "  Kent's  Commentaries," 
and  generally  considered  the  greatest  of  the  chan- 
cellors. Born  in  Dutchess  County,  July  31st,  1763, 
he  early  matriculated  at  Yale  College,  from  which 
institution  he  was  graduated  in  1781.  He  there- 
upon entered  the  law  office  of  Egbert  Benson,  to 
prepare  for  admission  to  the  bar,  and  was  admitted 
in  1783.     In  1787  he  was  nominated  counsel,  and 

260 


SUCCESSIVE   CHANCELLORS. 

admitted  to  practice  in  the  Court  of  Chancery  in 
1794,  on  motion  of  Edward  Livingston.  In  1796 
he  was  made  master  of  chancery;  in  1797  was  ap- 
pointed recorder  of  New  York  City;  succeeded 
Lansing  as  associate  justice  of  the  Supreme  Court, 
and  became  chief -justice  in  1804. 

WRITTEN  OPINIONS. 

Chancellor  Kent  inaugurated  the  practice  of 
handing  down  written  opinions,  which  has  since 
been  followed.  In  1814  he  succeeded  Lansing  as 
chancellor,  and  remained  in  office  until  he  reached 
the  age  limit  of  sixty  years,  in  1823.  After  his  re- 
tirement from  the  bench,  he  removed  to  the  vicinity 
of  New  York,  where  he  passed  the  remainder  of 
his  days,  and  where  his  opinions  on  legal  questions 
were  much  sought. 

Through  his  efforts  an  act  was  passed  in  the 
Legislature,  on  April  13th,  1814,  designating  the 
same  official  reporter  for  both  the  Supreme  Court 
and  the  Court  of  Chancery.  This  officer  was  ap- 
pointed by  the  chancellor,  and  licensed  all  attorneys 
and  counsellors  of  the  court. 

Kent  was  succeeded  by  Nathan  Sanford,  who 
remained  in  office  only  four  years,  owing  to  ill 
health,  and  was  succeeded  by  Samuel  Jones,  whose 
term  of  office  extended  from  January  24th,  1826, 
to  April,  1828. 

261 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 


CHANCELLOR    WALWORTH LAST    CHANCELLOR. 

Reuben  H.  Walworth,  at  the  age  of  thirty-eight, 
succeeded  Jones,  and  remained  in  office  until  the 
court  was  abolished  in  1846.  Upon  his  appointment 
to  office,  in  an  address  to  the  members  of  the  bar,  he 
modestly  confessed  his  diffidence  in  his  own  ability 
to  satisfactorily  fill  the  high  office.  That  he  had 
underrated  himself  was  later  proved  by  his  excel- 
lent record  in  office,  as  he  made  a  very  good  chan- 
cellor. 

Walworth  was  to  have  been  appointed  to  the 
chief -justiceship  of  the  United  States  Supreme 
Court,  but  was  rejected  for  a  whimsical  reason. 
Contrary  to  his  display  of  modesty  on  the  occasion 
of  his  elevation  to  the  chancellorship,  he  openly 
boasted  of  his  descent  from  Walworth,  mayor  of 
London  in  the  reign  of  Richard  II,  which  pride  of 
ancestry  had  a  most  disastrous  effect  on  his  judicial 
aspirations.  It  so  happened  that  President  Tyler 
was  a  descendant  of  that  Watt  Tyler,  who,  as  his- 
tory tells  us,  had  some  civic  difficulty  with  the 
above  mentioned  Mayor  Walworth,  and  the  presi- 
dent taking  up  the  ancient  grudge  of  his  ancestor, 
refused  to  appoint  Walworth  to  the  office. 

EFFECT  OF  THE  CONSTITUTION   OF   1821. 

The  constitution  of  1821  provided  that  the  chan- 
cellor should  be  appointed  by  the  governor,  with 

262 


EFFECT  OF  THE  CONSTITUTION  OF   1821. 

the  consent  of  the  senate,  to  hold  office  during 
good  behavior,  or  until  sixty  years  of  age. 

On  an  appeal  from  the  chancellor's  decision  to 
the  Court  for  the  Correction  of  Errors,  of  which 
he  was  a  member,  the  constitution  provided  that 
the  chancellor  should  give  his  reasons  for  his  deci- 
sion, but  should  have  no  voice  in  final  sentence. 

The  constitution  also  provided  that  equity  pow- 
ers vest  in  circuit  judges  created  by  it,  subject  to 
appeal  to  the  chancellor.  In  accordance,  an  act 
was  passed  April  17th,  1823,  conferring  upon  cir- 
cuit judges,  eight  in  number,  the  same  powers  and 
jurisdiction  as  the  chancellor,  in  all  equity  cases, 
subject  to  the  latter's  appellate  jurisdiction.  Each 
judge  was  to  appoint  a  clerk  for  the  Court  of 
Equity  at  which  he  presided,  who  should  also  per- 
form the  duties  of  a  register  in  said  court.  To  the 
judge  was  assigned  the  part  of  devising  a  seal  for 
the  use  of  the  clerk  in  all  equity  proceedings. 
These  courts  were  subsequently  abolished,  and  the 
chancellor  invested  with  general  equity  jurisdic- 
tion, the  circuit  judges  acting  as  equity  judges  in 
their  respective  circuits  only. 

By  other  constitutional  provisions,  masters  and 
examiners  in  chancery  were  to  be  appointed  by  the 
governor  and  senate  for  three  years,  unless  sooner 
removed,  and  registers  and  assistants  were  appoint- 
ed by  the  chancellor  during  pleasure.  These  latter 
were  formerly  appointed  by  the  council  of  appoint- 
ment.    In  1752,  during  Governor  Hardy's  rule, 

263 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

there  were  two  masters,  two  clerks,  one  examiner, 
a  register  and  sergeant-at-arms,  all  without  salary. 
In  1823  there  were  five  hundred  ten  masters  and 
twenty-five  examiners,  and  in  1846  their  number 
was  one  hundred  eighty-eight  masters  and  one  hun- 
dred sixty-eight  examiners. 

VICE-CHANCELLOR  FOR  FIRST  CIRCUIT. 

In  January,  1831,  a  separate  vice-chancellorship 
was  established  for  the  first  circuit,  which  included 
New  York  City;  this  officer  was  appointed  by  the 
governor  and  senate,  and  held  office  under  the  same 
conditions  as  the  chancellor.  On  March  16th,  1831, 
W.  T.  McCoun  was  appointed  to  this  office. 

On  March  27th,  1839,  an  assistant  vice-chancel- 
lor for  the  first  circuit  was  created  by  act  of  the 
Legislature,  whose  office  was  to  continue  for  three 
j^ears,  and  the  incumbent  was  appointed  in  the 
same  manner  as  the  chancellor  and  the  vice-chan- 
cellor. 

JNIurray  Hoffman  was  the  first  appointee  to  this 
new  office,  in  April  of  the  same  year.  In  1840  the 
office  was  made  permanent,  and  the  vice-chancellor 
directed  to  hold  special  terms  by  order  of  the  chan- 
cellor, within  the  municipal  limits  of  the  city  of 
New  York,  in  addition  to  regular  terms  in  the  cit3\ 
By  the  same  act  a  vice-chancellorship  was  created 
for  the  eighth  circuit,  who  was  to  hold  court  at 
Rochester,  and  whose  appointment  and  tenure  were 
to  be  the  same  as  that  of  the  vice-chancellor  for  the 
first  circuit. 

264 


TRANSFER  OF   JURISDICTION. 


COURT  OF  CHANCERY  ABOLISHED. 

Pursuant  to  the  constitution  of  1846,  the  Court 
of  Chancery  was  to  end  its  existence  on  the  first 
Monday  of  January,  1847.  The  powers  of  chan- 
cery were  generally  transferred  to  the  Supreme 
Court  organized  under  the  constitution  of  1846, 
and  the  records  deposited  with  the  clerk  of  the 
newly  created  Court  of  Appeals. 


265 


CHAPTER  XIX. 


CONSTITUTION  OF  1821 


Aristocracy  —  Circuit  Courts  —  Constitu- 
tional Changes  —  Revised  Statutes  —  Su- 
perior Court  of  the  City  of  New  York. 

aristocracy. 

From  the  chaotic  conditions  which  existed  long 
after  the  subjugation  and  settlement  of  the  colony 
of  New  York,  a  condition  of  almost  feudal  society 
had  evolved  itself.  The  opulent  and  powerful  had 
become  the  governing  class,  and  the  large  landed 
proprietors  wielded  the  patronage  and  privilege  of 
office.  The  governor  was  still  looked  upon  as  pos- 
sessing a  "  divine  right  "  to  rule,  and  he  exercised 
almost  royal  power,  especially  in  the  appointment 
of  officers.  The  chancellor  was  also  looked  upon 
as  a  vestige  of  royal  power  and  the  office  became 
very  unpopular,  though  several  of  our  ablest  men 
filled  the  position. 

Political  preferment  was  extended  to  those  of 
the  wealthy  and  native-born  classes,  often  to  the 
exclusion  of  the  majority,  who  were  of  the  foreign- 
born  and  dependent  classes.  To  remedy  this  un- 
equal condition  of  political  affairs,  the  constitution 

267 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

of  1821  was  adopted  for  the  state  at  large.  But 
v^ery  little  was  really  effected  by  this  instrument. 
The  constitution  of  1846  was  also  a  result  of  this 
feeling,  and  the  people  were  finally  somewhat  mol- 
lified by  having  their  judges  elected  instead  of  ap- 
pointed. 

CIRCUIT   COURTS. 

Under  the  constitution  of  1821,  the  state  was 
divided  into  circuits  for  each  of  which  was  organ- 
ized a  Circuit  Court.  These  were  an  offshoot  of 
the  old  Supreme  Court,  and  substituted  for  the 
former  itinerant  sessions.  As  a  condition  prece- 
dent to  holding  office,  the  judge  was  required  to  be 
a  resident  of  the  circuit  within  which  he  presided. 
The  reason  for  this  prerequisite  was  the  undesira- 
bility  of  having  courts  of  first  instance  at  the  seat 
of  government.  In  the  life  and  government  of  the 
state,  there  still  lingered  some  of  the  vestiges  and 
traditions  of  royalty,  which  were  obnoxiously  re- 
garded by  the  rank  and  file  of  the  inhabitants,  as 
hostile  to,  and  irreconcilable  with,  democratic  insti- 
tutions. 

In  the  course  of  time  the  complexion  of  the 
newly  created  Circuit  Court  underwent  a  change; 
from  a  court  of  state  institution,  it  became  a 
contracted  and  local  county  tribunal.  In  fact  the 
state  was  becoming  more  democratic  and  there  was 
a  universal  feeling  against  anything  that  resembled 
in  any  way  the  old  colonial  customs  and  privileges 
of  the  prerogative  right. 

268 


REVISED    STATUTES. 

In  the  year  1823,  a  radical  innovation  was  effect- 
ed in  the  jurisdiction  of  the  Circuit  Courts,  by 
which  the  equity  jurisdiction  of  the  court  was  abro- 
gated, and  relegated  exclusively  to  the  chancellor, 
save  that  circuit  judges  might  act  as  vice-chancel- 
lors within  their  circuits. 

By  a  further  amendment  in  1826,  the  equity  jur- 
isdiction for  the  first  district  was  conferred  on  a 
legal  officer  called  vice-chancellor.  This  step  was 
necessitated  by  the  increased  litigation  of  the  dis- 
trict. 

CONSTITUTIONAL    CHANGES. 

By  chapter  70,  of  the  Laws  of  1823,  the  Court  of 
Probates  which  had  been  founded  in  1778  was  for- 
mally abolished,  and  its  jurisdiction  transferred 
to  the  surrogates  of  the  various  counties,  subject 
to  the  right  of  appeal  to  the  chancellor,  in  whom 
was  vested  the  residuum  of  probate  jurisdiction  not 
otherwise  delegated. 

Under  the  constitution  of  1821,  the  chancellor 
and  judges  were  to  be  appointed  by  the  governor 
and  senate,  instead  of  by  the  council  of  appoint- 
ment, as  theretofore.  Otherwise  the  courts  were 
continued,  under  the  constitution,  substantially  as 
they  were  prior  to  its  adoption. 

REVISED    STATUTES. 

The  Revised  Statutes  of  1829  made  no  attempt 
to  define  the  jurisdiction  of  the  Court  of  Chancery, 

269 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

which  had  never  been  specifically  established,  al- 
though the  act  of  1683  gave  it  general  equity  pow- 
ers. The  Revised  Statutes  vested  equity  power  in 
the  chancellor. 

By  the  statutes,  the  new  Court  of  Chancery  was 
vested  with  the  ancient  jurisdiction  of  the  English 
court.  This  subject  was  discussed  in  1810,  in  the 
case  of  Yates  vs.  People,  which  involved  a  conflict 
of  jurisdiction  between  the  chancellor  and  Supreme 
Court,  and  in  which  it  was  held  that  the  New  York 
Court  of  Chancery  possessed  only  those  common 
law  powers  of  the  court,  which  in  England  were 
exercised  in  the  "  officina  justitiae,"  or  that  part 
from  which  writs  issued,  "  ex  debito  justitiae,"  and 
that  the  chancellor  of  New  York  possessed  the 
powers  exercised  by  the  lord-chancellor  in  that 
branch  of  the  Equity  Court  called  "  Court  of 
Equity  in  Chancery." 

The  constitution  of  1821  continued  the  Court  of 
Chancery  as  it  had  been  under  the  English  Crown, 
and  the  Revised  Statutes  of  1829  declared  to  this 
effect. 

The  jurisdiction  of  the  minor  courts  of  Justices 
of  the  Peace  was  fixed  by  the  Revised  Statutes,  al- 
though of  much  more  ancient  origin.  The  same 
applies  to  the  County  Courts  of  Common  Pleas, 
which  were  re-organized  by  the  Revised  Statutes. 

SUPERIOR  COURT  OF  THE  CITY  OF  NEW  YORK. 

A  congested  condition  of  aflPairs  in  the  Court  of 

270 


SUPERIOR  COURT  OF  THE  CITY  OF  NEW  YORK. 

Common  Pleas  led  to  the  erection  in  1828,  of  the 
Superior  Court  of  the  City  of  New  York.  (Laws 
of  1828,  p.  141,  C.  137;  3  R.  S.  261.)  This  condi- 
tion was  due  to  a  number  of  long  protracted  con- 
spiracy cases  which  grew  out  of  a  heavy  bank 
failure  in  1826,  and  clogged  the  calendar  of  the 
Court  of  Common  Pleas. 

Cognizance  of  local  actions  was  the  general  scope 
of  its  jurisdiction.  Unlike  most  of  the  New  York 
courts,  its  jurisdiction  was  statutory,  and  not  de- 
fined by  a  cross-reference  to  some  established  juris- 
diction of  a  common  law  court  of  England. 

Under  the  constitution  and  the  Revised  Statutes, 
the  Court  for  the  Trial  of  Impeachments  and  Cor- 
rection of  Errors  had  supreme  appellate  jurisdic- 
tion in  both  law  and  equity. 

The  constitutional  enactment  of  1821  established 
the  practice  and  procedure  of  courts  of  both  law 
and  equity,  conformable  to  that  of  England,  with 
some  local  variations,  which  had  grown  up  under 
the  Crown  government. 

The  disposition  of  the  judges,  however,  seems 
to  have  tended  rather  to  obliterate  these  distinc- 
tions, which  were  of  a  provincial  character,  and  fol- 
low ancient  precedents  rather  than  innovations. 

The  Revised  Statutes  did  not  revise  practice; 
they  systematized  many  of  the  old  statutes,  and 
embodied  some  new  provisions  as  to  limitations  of 
actions  in  courts;  but  no  great  reform  in  practice 
was  effected  prior  to  1846. 

271 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

What  changes  were  made  by  the  judicial  estab- 
Hshment  of  1821  were  insufficient  to  accompHsh 
much  good.  In  a  few  years  complaints  concern- 
ing delays  and  expense  in  legal  proceedings  finally 
led  to  the  convention  of  1846. 

The  new  circuit  judgeships,  created  by  the  con- 
stitution of  1821,  proved  in  the  end,  unsatisfactory, 
because  many  of  their  decisions  were  reviewed  by 
the  Supreme  Court  "  in  banc,"  and  reversed. 

From  1821  to  1846,  the  constitution  of  the  state 
underwent  few  organic  changes  or  amendments. 
However,  in  1826,  the  office  of  justice  of  the  peace 
M^as  made  elective. 


272 


CHAPTER  XX 


COURT  OF  APPEALS. 


Relation  to  Supreme  Court — Origin  of  Court 
— As  AT  Present  Constituted — Amendments 
— Under  Constitution  of  1895 — Vacancy, 
How  Filled — Jurisdiction  of  Court  of  Ap- 
peals—  Judges  not  to  Hold  any  Other 
Office — Removal  of  Judges — Compensation^ 
Age  Restriction^  Assignment  by  Governor. 

relation  to  supreme  court. 

A  complete  and  systematic  outline  of  the  Court 
of  Appeals  of  the  State  of  New  York  must  be 
traced  from  the  gradual  extension  of  the  appellate 
jurisdiction  of  the  Supreme  Court,  of  which  it  is 
the  legal  emanation. 

As  already  shown  in  our  history  of  the  Supreme 
Court,  its  original  appellate  jurisdiction  was  most 
comprehensive  in  all  matters  which  came  before  it 
on  appeal ;  it  was  the  court  of  last  resort,  and  knew 
no  higher  tribunal  of  review,  prior  to  the  Revolu- 
tion, than  direct  royal  adjudication  by  the  monarch 
or  the  home  government. 

Up  to  that  time,  the  Supreme  Court,  as  consti- 
tuted by  the  Colonial  Assembly  in  1691,  with  its 

273 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

general  appellate  jurisdiction,  was  the  final  arbiter 
of  judicial  controversies,  until  the  ever  growing 
complexities  of  litigation  indicated  the  necessity 
for  an  appellate  tribunal,  capable  of  reviewing 
final  decisions  of  the  Supreme  Court,  at  the  in- 
stance of  dissatisfied  litigants. 

ORIGIN  OF  COURT. 

In  the  constitution  of  1777  may  be  discerned  the 
first  dim  rudiments  of  our  present  Court  of  Ap- 
peals. Article  XXXII  of  the  constitution  of  1777 
provides  for  the  creation  by  the  Legislature,  of  a 
court  "  for  the  trial  of  impeachments  and  the  cor- 
rection of  errors,"  such  court  to  be  composed  of 
"  the  president  of  the  senate  for  the  time  being, 
and  the  senators,  chancellor,  and  judges  of  the 
Supreme  Court." 

The  article  further  provides  that  such  court  may 
affirm  or  reverse  a  cause  "  brought  up  by  writ  of 
error  on  a  question  of  law,  in  a  judgment  in  the 
Supreme  Court,"  with  the  sole  qualification  that 
that  portion  of  the  court  composed  of  the  judges 
of  the  Supreme  Court  rendering  the  decision  would 
be  disqualified  to  review  it,  though  they  might  ex- 
plain their  reasons  for  rendering  it. 

Under  the  constitution  of  1821,  article  V,  section 
1,  provision  of  a  similar  nature,  in  almost  the  exact 
words,  is  made. 

In  both  constitutions  may  be  observed  the  proto- 
type of  our  present  Court  of  Appeals,  consisting 

274 


xiMENDMENTS. 

of  a  court  for  the  trial  of  impeachments,  as  well 
as  for  the  review  of  final  decisions  in  law  and 
equity,  and  composed  of  legislative  officers,  as  well 
as  the  judges  of  the  Supreme  Court. 

AS  AT  PRESENT  CONSTITUTED. 

As  a  distinct  branch  of  the  judicial  system  of  the 
state,  and  under  its  present  title  and  functions,  the 
first  authorization  of  a  well  defined  Court  of  Ap- 
peals, composed  of  separate  judges,  and  with  a 
jurisdiction  distinct  from  that  of  courts  for  the 
trial  of  impeachments,  occurs  in  the  constitution  of 
1846. 

Under  this  constitution  a  differentiation  was 
established  between  the  trial  of  impeachments  and 
the  review  of  cases  on  appeal;  and  thenceforth 
there  existed  a  Court  for  the  Trial  of  Impeach- 
ments and  a  Court  of  Appeals. 

Article  VI,  section  2,  of  the  constitution  of  1846, 
provides  for  a  Court  of  Appeals  as  follows: 
"  There  shall  be  a  Court  of  Appeals  composed  of 
eight  judges,  of  whom  four  shall  be  elected  by  the 
electors  of  the  state  for  eight  years,  and  four 
selected  from  the  class  of  justices  of  the  Supreme 
Court,  having  the  shortest  time  to  serve." 

AMENDMENTS. 

Article  VI,  section  2,  of  the  amendments  to  the 
constitution  of  1846  (adopted  in  1869)  provides  for 
seven  judges  of  the  Court  of  Appeals,  to  be  chosen 

275 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

by  election  for  a  term  of  fourteen  years,  any  five  of 
whom  shall  constitute  a  quorum.  To  quote: 
"  There  shall  be  a  Court  of  Appeals,  composed  of  a 
chief  judge  and  six  associate  judges,  who  shall  be 
chosen  by  the  electors  of  the  state,  and  shall  hold 
their  office  for  the  term  of  fourteen  years  from  and 
including  the  first  day  of  January  next  after  their 
election.  At  the  first  election  of  judges  under  this 
constitution,  every  elector  may  vote  for  the  chief 
and  any  four  of  the  associate  judges.  Any  five 
members  of  the  court  shall  form  a  quorum  and  the 
concurrence  of  four  shall  be  necessary  to  a  deci- 
sion." 

Section  25,  of  article  VI  of  the  constitution  of 
1846,  provides  as  follows:  "  The  Legislature  at  its 
first  session  after  the  adoption  of  this  constitution 
shall  provide  for  the  organization  of  the  Court  of 
Appeals,  and  for  transferring  to  it  the  business 
pending  in  the  Court  for  the  Correction  of  Errors 
and  for  the  allowance  of  writs  of  errors  and 
appeals  to  the  Court  of  Appeals,  from  judgments 
and  decrees  of  the  present  Court  of  Chancery  and 
Supreme  Court,  and  of  the  courts  that  may  be 
organized  under  this  Constitution." 

The  election,  limitations,  compensation,  and  re- 
moval of  judges  of  the  Court  of  Appeals,  and  the 
filling  of  vacancies  caused  by  their  death  or  disabil- 
ity, are  provided  for  by  sections  7,  8,  11,  12,  and  13 
respectively  of  article  VI,  of  the  constitution  of 
1846,  and  by  sections  3,  10,  11,  14,  and  24  of  article 

276 


AMENDMENTS. 

VI  of  the  amendments  to  the  constitution  of  1846, 
adopted  in  1869. 

UNDER  CONSTITUTION   OF   1895. 

By  the  constitution  adopted  for  the  state  of  New 
York  in  1895,  the  Court  of  Appeals  is  provided 
for  in  the  following  terms,  article  VI,  section  7: 
"  The  Court  of  Appeals  is  continued.  It  shall  con- 
sist of  the  chief  judge,  the  associate  judges  now  in 
office,  who  shall  hold  their  offices  until  the  expira- 
tion of  their  respective  terms,  and  their  successors 
who  shall  be  chosen  by  the  electors  of  the  state. 
The  official  terms  of  the  chief  judge  and  associate 
judges  shall  be  fourteen  years  from  and  including 
the  first  day  of  January  next  after  their  election. 
Five  members  of  the  court  shall  form  a  quorum, 
and  the  concurrence  of  four  shall  be  necessary  to 
a  decision.  The  court  shall  have  power  to  appoint 
and  to  remove  its  reporter,  clerk,  and  attendants. 
Whenever  and  as  often  as  a  majority  of  the  judges 
of  the  Court  of  Appeals  shall  certify  to  the  gov- 
ernor that  said  court  is  unable,  by  reason  of  the 
accumulation  of  causes  pending  therein,  to  hear 
and  dispose  of  the  same  with  reasonable  speed,  the 
governor  shall  designate  not  more  than  four  jus- 
tices of  the  Supreme  Court  to  serve  as  associate 
judges  of  the  Court  of  Appeals.  The  justices  so 
designated  shall  be  relieved  from  their  duties  as 
justices 'of  the  Supreme  Court  and  shall  serve  as 
associate  judges  of  the  Court  of  Appeals  until  the 

277 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

causes  undisposed  of  in  said  court  are  reduced  to 
two  hundred,  when  they  shall  return  to  the  Su- 
preme Court.  The  governor  may  designate  jus- 
tices of  the  Supreme  Court  to  fill  vacancies.  No 
justice  shall  serve  as  associate  judge  of  the  Court 
of  Appeals  except  while  holding  the  office  of  jus- 
tice of  the  Supreme  Court,  and  not  more  than 
seven  judges  shall  sit  in  any  case." 

(Amended  by  vote  of  the  people,  November  7th,  1899.) 
Source — Art.   VI,   sec.   2",   of   amended   constitution   of 
1846,  with  language  somewhat  changed. 

VACANCY  IN  COURT  OF  APPEALS,  HOW  FILLED. 

Section  8  reads:  "When  a  vacancy  shall  occur 
otherwise  than  by  expiration  of  term,  in  the  office 
of  chief  or  associate  judge  of  the  Court  of  Appeals, 
the  same  shall  be  filled  for  a  full  term,  at  the  next 
general  election  happening  not  less  than  three 
months  after  vacancy  occurs ;  and  until  the  vacancy 
shall  be  filled,  the  governor,  by  and  with  the  advice 
and  consent  of  the  senate,  if  the  senate  shall  be 
in  session,  or  if  not  in  session  the  governor  may  fill 
such  vacancy  by  appointment.  If  any  such  ap- 
pointment of  chief  judge  shall  be  made  from  the 
associate  judges,  a  temporary  appointment  of  as- 
sociate judge  shall  be  made  in  like  manner;  but  in 
such  case  the  person  appointed  chief  judge  shall 
not  be  deemed  to  vacate  his  office  of  associate  judge 
any  longer  than  until  the  expiration  of  his  appoint- 
ment as  chief  judge.     The  powers  and  jurisdiction 

278 


VACANCY  IX  COURT  OF  APPEALS^  HOW  FILLED. 

of  the  court  shall  not  be  suspended  for  want  of  ap- 
pointment or  election  when  the  number  of  judges 
is  sufficient  to  constitute  a  quorum.  All  appoint- 
ments under  this  section  shall  continue  until  and 
including  the  last  day  of  December  next  after  the 
election  at  which  the  vacancy  shall  be  filled." 

Source — Art.  VI,  sec.  3,  of  amended  constitution  of 
1846,  with  slight  change  in  language. 

JURISDICTION  OF  COURT  OF  APPEALS. 

Section  9,  referring  to  the  court's  jurisdiction, 
is  as  follows:  "After  the  last  day  of  December, 
1895,  the  jurisdiction  of  the  Court  of  Appeals,  ex- 
cept where  the  judgment  is  of  death,  shall  be  limit- 
ed to  the  review  of  questions  of  law.  No  unani- 
mous decision  of  the  Appellate  Division  of  the 
Supreme  Covirt  that  there  is  evidence  supporting 
or  tending  to  sustain  a  finding  of  fact  or  a  verdict 
not  directed  by  the  court,  shall  be  reviewed  by  the 
Court  of  Appeals.  Except  where  the  judgment  is 
of  death,  appeals  may  be  taken,  as  of  right,  to  said 
court  only  from  judgment  or  orders  entered  upon 
the  decision  of  the  Appellate  Division  of  the  Su- 
preme Court,  finally  determining  actions  or  special 
proceedings,  and  from  orders  granting  new  trials 
on  exceptions,  where  the  appellants  stipulate  that 
upon  affirmance,  judgment  absolute  shall  be  ren- 
dered against  them.  The  Appellate  Division  in 
any  department  may,  however,  allow  an  appeal 
upon  any  question  of  law,  which  in  its  opinion, 
ought  to  be  reviewed  by  the  Court  of  Appeals. 

279 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

"  The  Legislature  may  further  restrict  the  juris- 
diction of  the  Court  of  Appeals  and  the  right  of 
appeals  thereto,  but  the  right  of  appeal  shall  not 
depend  upon  the  amount  involved. 

"  The  provisions  of  this  section  shall  not  apply  to 
orders  made  or  judgments  rendered  by  any  Gen- 
eral Term  before  the  last  day  of  December,  1895, 
but  appeals  therefrom  may  be  taken  under  existing 
provisions  of  law." 

Source — Mostly  new. 

JUDGES  NOT  TO  HOLD  ANY  OTHER  OFFICE. 

Section  10  says:  "  The  judges  of  the  Court  of 
Appeals  and  the  justices  of  the  Supreme  Court 
shall  not  hold  any  other  office  or  public  trust.  All 
votes  for  any  of  them,  for  any  other  than  a  judicial 
office  given  by  the  Legislature  or  the  people,  shall 
be  void." 

Source — Art.  YI,  sec.  10,  of  the  amended  constitution 
of  1846,  without  change. 

REMOVAL  OF  JUDGES. 

As  to  removal  from  office  we  refer  to  section  11 : 
"  Judges  of  the  Court  of  Appeals  and  justices  of 
the  Supreme  Court  may  be  removed  by  concurrent 
resolution  of  both  houses  of  the  Legislature,  if  two- 
thirds  of  all  the  members  elected  to  each  house  con- 
cur therein.  All  other  judicial  officers,  except 
justices  of  the  peace  and  judges  or  justices  of  in- 
ferior courts  not  of  record,  may  be  removed  by  the 

280 


REMOVAL   OF   JUDGES. 

senate,  on  the  recommendation  of  the  governor,  if 
two-thirds  of  all  the  members  elected  to  the  senate 
concur  therein.  But  no  officer  shall  be  removed  by 
virtue  of  this  section  except  for  cause,  which  shall 
be  entered  on  the  journals,  nor  unless  he  shall  have 
been  served  with  a  statement  of  the  cause  alleged, 
and  shall  have  had  an  opportunity  to  be  heard. 
On  the  question  of  removal,  the  yeas  and  nays  shall 
be  entered  on  the  journal." 

Source — Art.  VI,  sec.  11,  of  amended  constitution  of 
1846. 

compensation;  age  restriction;  assignment  by 
go\t:rnor. 

Section  12:  "  The  judges  and  justices  hereinbe- 
fore mentioned  shall  receive  for  their  services  a 
compensation  established  by  law,  which  shall  not 
be  increased  or  diminished  during  their  official 
terms,  except  as  provided  in  section  five  of  this 
article.  No  person  shall  hold  the  office  of  judge  or 
justice  of  any  court  longer  than  until,  and  includ- 
ing, the  last  day  of  December  next  after  he  shall 
be  seventy  years  of  age.  No  judge  or  justice  elect- 
ed after  the  first  day  of  January,  1894,  shall  be 
entitled  to  receive  any  compensation  after  the  last 
day  of  December  next  after  he  shall  be  seventy 
years  of  age,  but  the  compensation  of  every  judge 
of  the  Court  of  Appeals  or  justice  of  the  Supreme 
Court  elected  prior  to  the  first  day  of  January, 
1894,  whose  term  of  office  has  been,  or  whose  pres- 

281 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

ent  term  of  office  shall  be,  so  abridged,  and  who 
shall  have  served  as  such  judge  or  justice  ten  years 
or  more,  shall  be  continued  during  the  remainder  of 
the  term  for  which  he  was  elected;  but  any  such 
judge  or  justice  may,  with  his  consent,  be  assigned 
by  the  governor,  from  time  to  time,  to  any  duty  in 
the  Supreme  Court  while  his  compensation  is  so 
continued." 

Source — The  first  sentence  was  taken  from  the  first 
sentence  of  Art.  VI,  sec.  14,  of  the  amended  constitution 
of  1846,  without  change  in  language ;  the  sentence  relating 
to  age  hmitation  is  a  re-enactment  of  a  similar  provision 
contained  in  Art.  VI,  sec.  13,  of  such  constitution.  The 
remainder  of  the  section  was  added  by  the  convention  of 
1894. 


282 


CHAPTER  XXI. 

APPELLATE  DIVISION  OF  THE 
SUPREME  COURT. 


Nature  of  Court — Judicial  Departments — 
Appellate  Division — How  Constituted — 
Governor  to  Designate  Justices — Jurisdic- 
tion— Reporter — Time  and  Place  of  Hold- 
ing Courts — Judge  or  Jltstice  not  to  sit  in 
Review — Testimony  in  Equity  Cases. 

nature  of  court. 

This  branch  of  the  Supreme  Court  is  vested  with 
appellate  jurisdiction  of  appeals  immediately 
brought  before  it  from  the  trial  courts,  as  provided 
by  law.  Its  decisions,  with  some  few  exceptions, 
are  not  final,  and  may  be  reviewed  by  the  Court  of 
Appeals.  It  is  an  intermediary  appeal  tribunal, 
or  court  of  first  resort. 

This  court  as  now  constituted  originated  with  the 
constitution  of  1895,  and  succeeded  what  was  offi- 
cially designated  as  the  General  Term  of  the 
Supreme  Court. 

That  part  of  the  constitution  which  gave  it  being 
is  found  in  article  VI,  section  2,  of  the  constitu- 
tion of  the  state  of  New  York,  and  reads  as  fol- 
lows ; 

283 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 


JUDICIAL  DEPARTMENTS;  APPELLATE  DIVISION^  HOW 
CONSTITUTED. 

"The  Legislature  shall  divide  the  state  into  four 
judicial  departments.  The  first  department  shall 
consist  of  the  county  of  New  York;  the  others 
shall  be  bound  by  county  lines  and  be  compact  and 
equal  in  population  as  nearly  as  may  be.  Once 
every  ten  years  the  Legislature  may  alter  the  judi- 
cial departments,  but  without  increasing  the 
number  thereof.  There  shall  be  an  Appellate  Divi- 
sion of  the  Supreme  Court  consisting  of  seven 
justices  in  the  first  department,  and  five  justices  in 
each  of  the  other  departments.  In  each  department 
four  shall  constitute  a  quorum,  and  the  concurrence 
of  three  shall  be  necessary  to  a  decision.  No  more 
than  five  justices  shall  sit  in  siny  case." 

GOVERNOR  TO  DESIGNATE  JUSTICES. 

"From  all  the  justices  elected  to  the  Supreme 
Court,  the  governor  shall  designate  those  who  shall 
constitute  the  Appellate  Division  in  each  depart- 
ment; and  he  shall  designate  the  presiding  justice 
thereof,  who  shall  act  as  such  during  his  term  of 
office,  and  shall  be  a  resident  of  the  department. 
The  other  justices  shall  be  designated  for  terms  of 
five  3^ears,  or  the  unexpired  portions  of  their 
respective  terms  of  office,  if  less  than  five  years. 
From  time  to  time  as  the  terms  of  such  designations 

284 


GOVERNOR   TO  DESIGNATE   JUSTICES. 

expire,  or  vacancies  occur,  he  shall  make  new  desig- 
nations. A  majority  of  the  justices  so  designated 
to  sit  in  the  Appellate  Division  in  each  department 
shall  be  residents  of  the  department.  He  may  also 
make  temporarj^  designations  in  case  of  the  absence 
or  inability  to  act  of  any  justice  in  the  Appellate 
Division,  or  in  case  the  presiding  judge  of  any 
Appellate  Division  shall  certify  to  him  that  one  or 
more  additional  justices  are  needed  for  the  speedy 
disposition  of  the  business  before  it.  Whenever 
the  Appellate  Division  in  any  department  shall  be 
unable  to  dispose  of  its  business  within  a  reasonable 
time,  a  majority  of  the  presiding  justices  of  the 
several  departments  at  a  meeting  called  by  the 
presiding  justice  of  the  department  in  arrears,  may 
transfer  any  pending  appeals  from  such  depart- 
ment to  any  other  department  for  hearing  and 
determination.  Xo  justice  of  the  Appellate  Divi- 
sion shall  exercise  any  of  the  powers  of  a  justice  of 
the  Supreme  Court  other  than  those  of  a  justice  out 
of  court,  and  those  pertaining  to  the  Appellate 
Division  or  to  the  hearing  and  decision  of  motions 
submitted  by  consent  of  counsel." 

JURISDICTION REPORTER TIME  AND   PLACE  OF 

HOLDING    COURTS. 

"From  and  after  the  last  day  of  December,  1895, 
the  Appellate  Division  shall  have  the  jurisdiction 
now  exercised  by  the  Supreme  Court  at  its  General 
Terms  and  by  the  General  Terms  of  the  Court  of 

285 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

Common  Pleas  for  the  city  and  county  of  New 
York,  the  Superior  Court  of  the  city  of  New 
York,  the  Superior  Court  of  Buffalo  and  the  City 
Court  of  Brooklyn,  and  such  additional  jurisdic- 
tion as  may  be  conferred  by  the  Legislature.  It 
shall  have  power  to  appoint  and  remove  a  reporter. 
The  justices  of  the  Appellate  Division  in  each 
department  shall  have  power  to  fix  the  times  and 
places  for  holding  Special  and  Trial  Terms  therein 
and  to  assign  the  justices  in  the  departments  to  hold 
such  terms;  or  to  make  rules  therefor." 

(Amended  by  vote  of  people,  Nov.  7th,  1899.) 
Source — Mostly  new.     The  Appellate  Division  is  a  sub- 
stitute for  and  has  the  jurisdiction  of  the  former  General 
Term. 

JUDGE  OR  JUSTICE  NOT  TO  SIT  IN  REVIEW;  TESTI- 
MONY IN  EQUITY  CASES. 

As  to  the  judges'  rights  to  sit  on  appeal,  section  3 
of  the  same  article  says :  "No  judge  or  justice  shall 
sit  in  the  Appellate  Division  or  in  the  Court  of 
Appeals  in  review  of  a  decision  made  by  him  or  by 
any  court  of  which  he  was  at  the  time  a  sitting 
member.  The  testimony  in  equity  cases  shall  be 
taken  in  like  manner  as  in  cases  at  law ;  and  except 
as  herein  otherwise  provided,  the  Legislature  shall 
have  the  same  power  to  alter  and  regulate  the  juris- 
diction and  proceedings  in  law  and  in  equity,  that 
it  has  heretofore  exercised." 

Source — Art.  VI,  sec.  8,  of  the  amended  constitution 
of  1846. 

286 


CHAPTER  XXII 
COUNTY  COURTS. 


Their  Nature — New  York  County  Court — 
Present  Status  —  County  Courts  as  now 
Constituted — Courts  of  Sessions  Abolished. 

their  nature. 

These  courts,  as  their  name  implies,  are  those 
whose  jurisdiction  and  powers  are  confined  to  the 
counties  in  which  they  are  situated.  Courts  of  a 
local  and  limited  jurisdiction,  known  as  Courts  of 
Sessions,  were  almost  contemporaneous  with  the 
establishment  of  a  system  of  judicature  for  the 
state.  When  the  state  was  subdivided  into  counties 
as  it  now  exists,  these  courts  gave  place  to  the 
Count}^  Courts. 

County  Courts  were  first  created  by  the  consti- 
tution of  1691,  and  re-established  in  1777;  they 
were  again  continued  by  the  constitution  of  1821, 
with  the  new  provision  that  the  judges  were  to  hold 
office  for  a  term  of  five  years. 

NEW   YORK   COUNTY    COURT. 

The  County  Court  of  the  city  of  New  York  was 
known  as  the  "Court  of  Common  Pleas  for  the 

287 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

City  and  County  of  New  York."  Originally  this 
court  was  designated  as  the  "Mayor's  Court,"  and 
the  mayor  usually  presided  at  its  sessions;  but  dur- 
ing the  mayorality  of  De  Witt  Clinton,  from  1805 
to  1821,  the  recorder  of  the  city  sat  as  the  presiding 
judge  of  the  Mayor's  Court. 

By  an  act  of  the  Legislature  in  1821,  as  hereto- 
fore mentioned,  the  name  of  the  court  was  changed 
to  the  "Court  of  Common  Pleas  for  the  City  and 
County  of  New  York."  The  act  created  a  first 
judge,  to  hold  office  during  good  behavior,  or  until 
the  age  limit,  which  was  sixty  years ;  but  the  consti- 
tution that  was  adopted  during  the  year  changed 
the  length  of  the  term  of  office  to  five  j^ears,  and 
empowered  the  governor  to  appoint  the  judges  of 
this  court. 

PRESENT  STATUS. 

The  County  Court  is  the  subject  of  a  special 
enactment  of  the  constitution  of  1846,  in  the  fol- 
lowing terms,  article  IV,  section  14:  "There  shall 
be  elected  in  each  of  the  counties  of  this  state,  ex- 
cept the  city  and  county  of  New  York,  one  county 
judge  who  shall  hold  his  office  for  four  years.  He 
shall  hold  the  County  Court  and  perform  the  duties 
of  the  office  of  surrogate.  The  County  Court  shall 
have  such  jurisdiction  in  cases  arising  in  Justices' 
Courts,  and  in  special  cases,  as  the  Legislature  may 
prescribe;  but  shall  have  no  original  civil  juris- 
diction, except  in  such  special  cases. 

288 


PRESENT   STATUS. 

"The  county  judge  with  two  justices  of  the  peace 
to  be  designated  according  to  law,  may  hold  Courts 
of  Sessions,  with  such  criminal  jurisdiction  as  the 
Legislature  shall  prescribe,  and  perform  such  other 
duties  as  may  be  required  by  law. 

"In  counties  having  a  population  exceeding 
forty  thousand,  the  Legislature  may  provide  for 
the  election  of  a  separate  officer  to  perform  the 
duties  of  the  office  of  surrogate. 

"The  Legislature  may  confer  equity  jurisdiction 
in  special  cases  upon  the  county  judge." 

COUNTY   COURTS  AS  NOW   CONSTITUTED. 

Article  VI,  section  14,  of  the  present  constitution 
of  the  state  of  New  York,  in  relation  to  County 
Courts,  is  as  follows:  "The  existing  County 
Courts  are  continued,  and  the  judges  thereof  now 
in  office  shall  hold  their  offices  until  the  expiration 
of  their  respective  terms.  In  the  county  of  Kings 
there  shall  be  two  county  judges  and  the  additional 
county  judge  shall  be  chosen  at  the  next  general 
election  held  after  the  adoption  of  this  article.  The 
successors  of  the  several  county  judges  shall  be 
chosen  by  the  electors  of  the  counties  for  the  term 
of  six  years.  County  Courts  shall  have  the  powers 
and  jurisdiction  they  now  possess  and  also  original 
jurisdiction  in  actions  for  the  recovery  of  money 
only,  where  the  defendants  reside  in  the  count}^  and 
in  which  the  complaint  demands  judgment  for  a 
sum   not   exceeding   two   thousand   dollars.      The 

289 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

Legislature  may  hereafter  enlarge  or  restrict  the 
jurisdiction  of  the  county  courts,  provided,  how- 
ever, that  their  jurisdiction  shall  not  be  so  extended 
so  as  to  authorize  an  action  therein  for  the  recovery 
of  money  only,  in  which  the  sum  demanded  exceeds 
two  thousand  dollars,  or  in  which  any  person  not  a 
resident  of  the  county  is  a  defendant." 

COURTS  OF  SESSIONS  ABOLISHED. 

The  article  goes  on  to  say,  "Courts  of  Sessions, 
except  in  the  county  of  New  York,  are  abolished 
from  and  after  the  last  day  of  December,  1895.  All 
the  jurisdiction  of  the  Court  of  Sessions  in  each 
county,  except  the  county  of  New  York,  shall  there- 
upon be  vested  in  the  County  Court  thereof,  and  all 
actions  and  proceedings  then  pending  in  such 
Courts  of  Sessions  shall  be  transferred  to  said 
County  Courts  for  hearing  and  determination. 
Every  county  judge  shall  perform  such  duties  as 
may  be  required  by  law.  His  salary  shall  be  estab- 
lished by  law  payable  out  of  the  county  treasury. 
A  county  judge  of  any  county  may  hold  County 
Courts  in  any  other  county  when  requested  by  the 
judge  of  such  other  county." 

Source — See  Art.  VI,  sec.  15,  of  the  amended  consti- 
tution of  1846.  The  limitation  of  jurisdiction  was  raised 
from  one  to  two  thousand  dollars,  and  Courts  of  Sessions 
were  abolished  and  their  jurisdiction  conferred  upon 
County  Courts  by  the  convention  of  1894. 


290 


CHAPTER  XXIII. 

SURROGATES'  COURTS. 

Surrogates^  When  to  be  Elected — Separate 
County  Judge  and  Surrogate — When  They 
Enter  upon  Their  Duties — Surrogates^ 
Court  under  Present  Constitution. 

This  court  has  existed  from  the  origin  of  courts 
in  the  state  of  New  York,  though  its  powers  and 
jurisdiction,  until  the  adoption  of  the  constitution 
of  1846,  and  even  later,  were  exercised  as  a  branch 
of  other  courts. 

Under  the  constitution  of  1846,  except  as  other- 
wise provided,  the  office  of  surrogate  was  blended 
in  that  of  county  judge,  by  the  following  extract 
from  article  VI,  section  14  thereof,  which  relates  to 
judges  of  County  Courts:  "He  shall  hold  the 
County  Court  and  perform  the  duties  of  the  office 
of  surrogate." 

Provision  was  made  for  an  extra  surrogate  in  the 
following  terms  of  the  same  article  and  section: 
"In  counties  having  a  population  exceeding  forty 
thousand,  the  Legislature  may  provide  for  the 
election  of  a  separate  officer  to  perform  the  duties 
of  the  office  of  surrogate." 

291 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

The  surrogate  is  essentially  a  county  officer,  and 
as  the  business  of  the  office  increased,  it  became 
necessary  to  commit  this  important  branch  of  the 
law  to  a  single  judge.  This  devolution  of  jurisdic- 
tion in  the  different  counties  was  gradually  effected 
as  probate  business  required. 

SURROGATES^  WHEN  TO  BE  ELECTED. 

The  election  of  surrogates,  in  special  cases,  is 
provided  for,  by  the  Laws  of  1847,  chapter  276,  sec- 
tion 2,  as  follows :  "There  shall  be  elected  a  separate 
officer  to  perform  the  duties  of  the  office  of  surro- 
gate, in  each  of  the  counties  of  this  state  (except 
New  York),  having  a  population  exceeding  forty 
thousand  in  which  such  separate  officer  shall  be 
determined  upon,  as  hereinafter  provided." 

SEPARATE  COUNTY  JUDGE  AND  SURROGATE. 

Section  11  goes  on  to  say:  "They  (the  board  of 
supervisors  in  the  several  counties  of  the  state, 
except  New  York)  shall  also  at  the  same  meeting 
(May  25th,  1847,  at  the  office  of  the  county  clerk  in 
their  respective  counties)  in  those  counties  having 
a  population  exceeding  forty  thousand,  determine 
whether  the  office  of  county  judge  and  surrogate 
shall  be  separate,  and  if  separate,  they  shall  fix  the 
salary  of  such  separate  officer.  This  section  does 
not  effect  separate  officers  and  determined  salaries." 


292 


SURROGATES    COURT  UNDER  PRESENT  CONSTITUTION. 


WHEN  THEY  ENTER  UPON  THEIR  DUTIES. 

Section  12,  of  the  same  chapter,  provides  as  fol- 
lows: "Such  elected  separate  officers  are  to  enter 
upon  their  duties  the  first  JNIonday  in  July,  1847, 
for  four  years." 

SURROGATES^  COURT  UNDER  PRESENT  CONSTITUTION. 

By  the  constitution  of  1895,  the  existing  Surro- 
gates' Courts  were  embraced  in  article  VI,  section 
15,  which  is  as  follows:  "The  existing  Surrogates' 
Courts  are  continued,  and  the  surrogates  now  in 
office  shall  hold  their  offices  until  the  expiration  of 
their  terms.  Their  successors  shall  be  chosen  by  the 
electors  of  their  respective  counties,  and  their  terms 
of  office  shall  be  six  years,  except  in  the  county  of 
New  York,  where  they  shall  continue  to  be  four- 
teen years.  Surrogates  and  Surrogates'  Courts 
shall  have  the  jurisdiction  and  powers  which  the 
surrogates  and  existing  Surrogates'  Courts  now 
possess,  until  otherwise  provided  by  the  Legisla- 
ture. The  county  judge  shall  be  surrogate  of  his 
county,  except  where  a  separate  surrogate  has  been 
or  shall  be  elected.  In  counties  having  a  population 
exceeding  forty  thousand,  wherein  there  is  no  sep- 
arate surrogate,  the  Legislature  may  provide  for 
the  election  of  a  separate  officer  to  be  a  surrogate, 
whose  term  of  office  shall  be  six  years.  When  the 
surrogate  shall  be  elected  as  a  separate  officer  his 

293 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

salary  shall  be  established  by  law,  payable  out  of 
the  county  treasury.  No  county  judge  or  surro- 
gate shall  hold  office  longer  than  until,  and  includ- 
ing, the  last  day  of  December  next  after  he  shall  be 
seventy  years  of  age.  Vacancies  occurring  in  the 
office  of  county  judge  or  surrogate  shall  be  filled 
in  the  same  manner  as  like  vacancies  occurring  in 
the  Supreme  Court.  The  compensation  of  any 
county  judge  or  surrogate  shall  not  be  increased 
or  diminished  during  his  term  of  office.  For  the 
relief  of  Surrogates'  Courts  the  Legislature  may 
confer  upon  the  Supreme  Court  in  any  county 
having  a  population  exceeding  four  hundred  thou- 
sand, the  powers  and  jurisdiction  of  surrogates, 
with  authority  to  try  issues  of  fact  by  jury  in  pro- 
bate cases." 

Source — See  Art.  VI,  sec.  15,  of  the  amended  consti- 
tution of  1846. 


294 


CHAPTER  XXIV. 

SPECIAL  COURTS  FOR  THE  CITY  OF 
NEW  YORK. 


City  Court  of  the  City  of  New  York — Munic- 
ipal Courts — Inferior  Courts  of  Criminal 
Jurisdiction  —  Court  of  Magistrates  —  Or- 
ganization AND  Powers  of  the  Court — Es- 
tablishment OF  Part  for  Children's  Cases  in 
First  Division — Court  of  Special  Sessions — 
Children's  Court — Jurisdiction — Court  and 
Office  of  Justice  of  the  Peace  Abolished — 
The  Superior  Court — Jurisdiction — Purely 
A  Statutory  Court. 

city  court  of  the  city  of  new  YORK. 

The  origin  and  creation  of  this  distinctively  local 
court  has  been  elsewhere  given  in  the  general  devel- 
opment and  growth  of  the  different  state  and 
municipal  courts  of  New  York. 

Its  present  existence  and  organization  is  author- 
ized and  regulated  by  the  Greater  New  York 
Charter,  chapter  XX,  title  1,  section  1345,  as  fol- 
lows: "The  City  Court  of  the  City  of  New  York, 
continued." — "The  City  Court  shall  be  continued; 
the  said  court  and  the  justices  thereof  shall  have  the 

295 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

same  powers  and  jurisdiction  as  are  now  conferred 
upon  them  by  law;  etc." 

The  remainder  of  the  section  we  omit  as  not 
being  material;  it  merely  prescribing  the  qualifica- 
tions and  manner  of  election  of  the  judges. 

MUNICIPAL  COURTS. 

OAving  to  the  extensive  jurisdiction  which  the 
consolidation  of  the  constituent  parts  of  Greater 
New  York  entailed,  a  corresponding  change  in  the 
local  municipal  judicial  system  was  deemed  essen- 
tial. This  was  effected  by  the  creation  of  municipal 
courts  for  the  different  districts,  which  were,  with 
enlarged  jurisdiction,  a  continuation  of  the  district 
courts. 

The  Greater  New  York  Charter  provided  for  the 
creation  of  the  Municipal  Courts,  by  chapter  XX, 
title  2,  section  135,  as  follows:  "On  and  after  the 
first  day  of  January,  1898,  the  district  courts  of  the 
city  of  New  York,  and  the  Justices'  Courts  of  the 
first,  second,  and  third  districts  of  the  city  of 
Brooklyn,  are  hereby  continued,  consolidated  and 
re-organized  under  the  name  of  '  The  Municipal 
Court  of  the  City  of  New  York,'  which  said  court 
shall  be  a  local  civil  court  within  the  city  of  New 
York  as  constituted  by  this  act,  and  shall  not  be  a 
court  of  record,  or  have  any  equity  jurisdiction; 
powers,  duties,  and  organization  hereinafter  pre- 
scribed." 

Though  established  under,  and  by  virtue  of,  the 

296 


MUNICIPAL  COURTS. 

municipal  charter,  and  of  only  local  jurisdiction,  it 
has  been  held  b}^  the  Supreme  Court  that  the 
JNIunicipal  Courts  are  a  part  of  the  jvidicial  system 
of  the  state,  and  its  justices  accordingly  are  not 
officers  of  the  city  government.  This  was  decided 
in  the  case  of  Quinn  v.  The  Mayor,  How.  Pr.  266, 
afF'd  in  53  N.  Y.  627.. 

By  another  decision  of  the  same  tribunal,  it  has 
been  held  that  the  ]Municipal  Courts  of  the  city  of 
New  York  are  a  continuance,  consolidation,  and 
re-organization  of  the  District  Courts  of  the  old 
city  of  New  York,  and  the  Justices'  Courts  in  the 
first,  second,  and  third  districts  of  the  old  city  of 
Brookh^n  under  the  new  name,  and  is  not  a  new 
local  inferior  court  within  section  18  of  article  VI 
of  the  constitution,  authorizing  the  Legislature  to 
establish  inferior  local  courts,  but  prohibiting  it 
from  "hereafter  conferring  upon  any  inferior 
local  court  of  its  creation,  anj^  other  equity  juris- 
diction in  any  other  respects  than  is  conferred  by 
or  under  this  article."  (Worthington  v.  London 
G.  &  A.  Co.,  164  N.  Y.  80.) 

INFERIOR  COURTS  OF  CRIMINAL  JURISDICTION. 

Chapter  XX,  title  3,  section  1390,  of  the  Greater 
New  York  Charter  has  the  following  provi- 
sion: "  For  the  purpose  of  administration  of  crim- 
inal justice,  the  cit}^  of  New  York,  as  hereby 
constituted,  is  divided  into  two  divisions,  as  follows : 
The  first  division  embraces  the  Boroughs  of  Bronx 

297 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

and  of  Manhattan;  the  second  division  embraces 
the  Boroughs  of  Brooklyn,  Queens,  and  Rich- 
mond; and  the  Borough  of  the  Bronx  in  the  first 
division  shall  be  divided  into  two  City  Magistrate's 
Court  districts  by  the  mayor,  commissioner  of 
police  and  the  president  of  the  Court  of  City  Mag- 
istrates of  the  first  division  in  such  manner  as  to 
make  access  to  the  courts  convenient  to  the  resi- 
dents of  that  borough  and  otherwise  conserve  pub- 
lic interests.  The  original  district  thus  to  be  made 
shall  be  known  as  the  Eighth  District  City  Magis- 
trate's Court." 

(As  amended  by  Laws  of  1903,  chap.  410.) 

COURT  OF  MAGISTRATES. 

Section  1391  of  the  same  chapter  and  title  pro- 
vides as  follows :  "In  each  of  the  said  districts  there 
shall  be  a  board  of  city  magistrates  composed  of 
the  magistrates  therein  in  office  on  the  first  day  of 
January,  1902,  and  such  as  thereafter  may  be  ap- 
pointed or  elected  pursuant  to  law.  The  board  for 
the  first  division  shall  consist  of  fourteen  magis- 
trates, each  of  whom  shall  be  a  resident  and  elector 
within  said  first  division.  The  board  of  the  second 
division  shall  consist  of  fifteen  magistrates,  ten  of 
whom  shall  be  residents  and  electors  of  the  Bor- 
ough of  Brooklyn,  three  of  the  Borough  of  Queens, 
and  two  of  the  Borough  of  Richmond,  which  said 
board  shall  be  created  as  hereinafter  provided." 

(As  amended  by  Laws  of  1903,  chap.  410.) 

298 


CHILDREN'S   CASES   IN   FIRST  DIVISION. 


ORGANIZATION  AND  POWERS  OF  THE  COURT. 

The  following  provision  is  found  in  section 
1393,  same  chapter  and  title:  "  Each  board  of  the 
city  magistrates  may  elect  a  president  from  their 
own  number,  and  at  pleasure  remove  him  and  elect 
a  successor.  All  the  meetings  of  such  board  shall 
be  public  and  itis  proceedings  shall  be  recorded  in 
its  books  of  minutes  by  the  secretary  and  shall  be 
preserved.  Each  board  may  designate  a  police 
clerk  to  act  as  its  secretary,  and  from  time  to  time 
substitute  any  other;  and  the  salary  of  such  police 
clerk,  as  such  secretary,  shall  not  exceed  five  hun- 
dred dollars  per  annum.  Each  board  shall  estab- 
lish public  rules  relative  to  its  meetings,  which,  as 
far  as  possible,  shall  be  held  at  regular  times  for 
the  order  and  transaction  of  its  business  thereat; 
for  the  keeping  and  preservation  of  the  minutes  of 
its  doings;  for  the  appointment  of  employees;  and 
for  the  public  inspection  of  its  minutes,  under  the 
care  of  the  secretary,  at  reasonable  times.  The 
concurrence  of  a  majority  of  all  the  members  of 
the  board  of  city  magistrates  shall  be  necessary  to 
adopt  any  resolution  of  said  board." 


ESTABLISHMENT  OF  PART  FOR  CHILDREN'S  CASES  IN 
FIRST  DIVISION. 


Under  section  1399,  same  chapter  and  title,  pro- 
vision is  made  as  follows:  "  The  board  of  city  mag- 

299 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

istrates  of  the  first  division  shall  assign  a  part  for 
the  hearing  and  disposition  of  cases  now  within  the 
jurisdiction  of  said  magistrates,  involving  the  trial 
or  commitment  of  children,  which  part  may  for 
convenience  be  called  the  Children's  Court;  and  in 
all  such  cases  the  magistrate  holding  said  court 
shall  have  all  the  powers,  duties,  and  jurisdiction 
now  possessed  by  the  city  magistrates  within  said 
first  division.  Said  Children's  Court  shall  be  held 
by  the  several  magistrates  in  rotation  in  such  man- 
ner as  may  be  determined  by  said  board,  and  shall 
be  opened  on  such  days  and  during  such  hours  as 
the  said  board  shall  in  its  rules  provide.  Whenever 
under  any  provision  of  law,  a  child  under  sixteen 
years  of  age  is  taken  before  a  city  magistrate  in 
the  first  division  sitting  in  any  court  other  than  the 
Children's  Court,  it  shall  be  the  duty  of  such  magis- 
trate to  transfer  the  case  to  the  Children's  Court. 
If  the  case  falls  within  the  jurisdiction  of  said 
court,  as  herein  provided,  it  shall  be  the  duty 
of  the  ofiicer  having  the  child  in  charge  to  take  such 
child  before  that  court,  and  in  any  such  case  the 
magistrate  holding  said  Children's  Court  must  pro- 
ceed to  hear  and  dispose  of  the  case  in  the  same 
manner  as  if  it  had  been  originally  brought  therein. 
The  board  of  city  magistrates  shall  appoint  a  clerk 
for  the  Children's  Court,  and  such  assistants  as  may 
be  necessary,  whose  salaries  shall  be  fixed  by  the 
board  of  aldermen,  on  the  recommendation  of  the 
board   of   estimate   and   apportionment,   and   said 

800 


CHILDREN  S   CASES   IX    FIRST   DIVISION. 

court  shall  be  held,  if  practicable,  in  the  building 
in  which  the  offices  of  the  Department  of  Public 
Charities  for  the  examination  of  dependent  chil- 
dren are  located,  or  if  this  shall  not  be  practicable, 
the  court  shall  be  held  in  some  other  building  as 
near  thereto  as  practicable,  to  be  selected  by  the 
commissioners  of  the  sinking  fund.  Nothing 
herein  contained  shall  affect  any  provisions  of  law 
with  respect  to  the  temporary  commitment  by  the 
magistrates,  of  children  charged  with  crime  or  held 
as  witnesses  for  the  trial  of  any  criminal  case,  or 
the  existing  jurisdiction  of  the  Court  of  Special 
Sessions." 

COURT   OF   SPECIAL   SESSIONS. 

Under  the  provision  of  section  1405,  chapter 
XX,  title  3,  of  the  Greater  New  York  Charter,  the 
following  provision  is  made:  "  The  Court  of  Spe- 
cial Sessions  of  the  city  of  New  York  is  hereby 
continued,  with  all  the  powers,  duties,  and  jurisdic- 
tion it  now  has  by  law,  and  such  additional  powers, 
duties,  and  jurisdiction  as  are  contained  in  and 
covered  by  section  1419.  The  justices  of  the  Court 
of  Special  Sessions  of  the  first  and  second  divisions 
of  the  city  of  New  York  are  hereby  continued  in 
office  until  the  expiration  of  the  terms  for  which 
they  have  been  appointed,  and  their  successors  shall 
be  appointed  by  the  mayor  for  the  term  of  ten 
years.  There  shall  be  six  justices  of  the  Special 
Sessions  for  the  first  division  and  six  for  the  second 

301 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

division  for  a  term  of  ten  years,  whose  powers, 
duties,  jurisdiction,  and  compensation  shall  be  the 
same ;  whose  successors  shall  be  elected  in  like  man- 
ner and  who  shall  possess  all  the  requirements  for 
appointment  as  those  hereby  continued  in  office." 
(As  amended  by  Laws  of  1903,  chap.  159.) 

CHILDREN'S  COURT,  JURISDICTION. 

Section  1418,  same  chapter  and  title,  provides: 
"  The  justices  of  the  Special  Sessions  of  the  first 
division  shall  assign  a  separate  part  for  the  hearing 
and  disposition  of  cases  heretofore  within  the  juris- 
diction of  city  magistrates,  involving  the  trial  or 
commitment  of  children,  which  part  shall  be  called 
the  Children's  Court;  and  in  all  such  cases  the  jus- 
tice or  justices  holding  said  court  shall  have  all  the 
powers,  duties,  and  jurisdiction  as  are  contained  in 
the  following  sections." 

COURT  AND  OFFICE  OF  JUSTICE  OF  PEACE  ABOLISHED. 

Section  1350  of  the  same  chapter  and  title,  is 
to  the  following  effect ;  "From  and  after  midnight 
of  the  31st  day  of  January,  1898,  the  Justices' 
Courts  and  the  office  of  justice  of  the  peace  in  the 
city  of  Brooklyn  and  Long  Island  City  are 
abolished  ******  and  from  and  after  the 
passage  of  this  act,  no  person  shall  be  elected  to  the 
office  of  district  court  justice  or  justice  of  the  peace 
in  any  portion  of  the  territory  included  within  the 
city  of  New  York  as  constituted  by  this  act." 

302 


CEEATION  OF  SUPEEIOR  COURT. 


THE  SUPERIOR  COURT. 

Owing  to  the  increased  business  of  the  Supreme 
Court,  which  had  multiphed  to  an  enormous  extent 
throughout  the  state,  it  was  deemed  fit,  by  the 
Legislature,  to  erect  a  special  court  for  the  county 
of  New  York,  with  the  same  powers  and  jurisdic- 
tion as  the  Supreme  Court. 

Another  reason  for  the  creation  of  the  Superior 
Court  of  the  county  of  New  York  was  the  crowded 
calendar  of  the  Court  of  Common  Pleas.  There 
had  been  a  heavy  bank  failure  at  about  this  time, 
and  the  resultant  actions  at  law  tended  to  clog  the 
regular  calendars  of  both  the  Supreme  and  Com- 
mon Pleas  Courts. 

It  therefore  established  by  act  of  March  31st, 
1828,  a  Superior  Court  for  the  county  of  New 
York,  which  exercised,  in  all  civil  cases,  the  same 
jurisdiction  as  the  Supreme  Court. 

Previous  to  the  establishment  of  this  court,  the 
calendar  of  cases  ready  for  trial  both  in  the  Su- 
preme Court  and  Court  of  Common  Pleas,  was  far 
in  arrears ;  from  twelve  to  fifteen  months'  delay  was 
entailed,  after  issue  joined,  before  cases  were 
reached  for  trial. 

The  first  chief -justice  of  the  Superior  Court  was 
Samuel  Jones,  who,  at  the  time  of  his  appointment 
to  this  office,  resigned  the  chancellorship  to  assume 
the  duties  of  his  new  office.  The  associate  judges 
were  Josiah  Ogden  Hoffman  and  Thomas  J.  Oak- 
ley. 

303 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 


JURISDICTION. 

The  governor,  by  and  with  the  advice  and  con- 
sent of  the  senate,  was  vested  with  the  power  of 
appointing  the  judges  of  this  court,  who  were  to 
hold  office  for  the  term  of  five  years.  The  court 
was  given  jurisdiction  in  all  actions  at  law,  without 
limitation  as  to  amount,  if  the  action  were  com- 
menced in  New  York  City.  It  had  the  power  to 
grant  new  trials,  and  exercise  all  the  powers  usually 
exercised  by  the  courts  of  record.  It  heard  appeals 
from  the  judgments  of  the  Marine  Court,  and  the 
Assistant- Justices'  Courts;  but  this  appellate  juris- 
diction was  afterwards  transferred  to  the  Court  of 
Common  Pleas.  The  business  of  the  court  must 
have  assumed  large  proportions,  for  by  acts  of  the 
Legislature,  the  number  of  its  judges  was  increased 
from  three  to  six. 

PURELY   A   STATUTORY    COURT. 

It  is  important  to  mention  that  this  was  the  first 
court  that  was  not  modeled  on  a  like  court  in  Eng- 
land. Originally  all  the  courts  were  created  by  the 
English  colonists,  but  were  based  on  the  courts  they 
were  accustomed  to  at  home.  These  courts,  with 
perhaps  some  slight  changes,  were  continued  by  the 
successive  constitutions  of  the  state.  But  the  Su- 
perior Court  was  created  by  statute  of  the  Legisla- 
ture, and  no  mention  was  made  that  its  jurisdiction 
was  defined  by  a  similar  court  in  England. 

304 


CHAPTER  XXV. 


JUSTICES  OF  THE  PEACE. 


Popular  Courts  —  Court  Procedure  —  Jury 
Trials — Costs — Amended  Jurisdiction — As- 
sistant-Justices^ Court — Present  Status. 

popui^R  courts. 

These  ancient  courts  seem  to  have  been  co-eval 
with  nearly  all  developing  systems  of  judicature. 
The  courts  nearest  to  the  popular  vein  seem  to  have 
been,  under  most  conditions,  those  of  justices  of  the 
peace.  Their  jurisdiction  over  the  petty  affairs  of 
life  brought  them  into  the  closest  contact  with  the 
great  mass  of  the  populace. 

From  the  first  settlement  of  the  English  in  the 
province  of  New  York,  justices  of  the  peace  held 
Town  Courts,  and  were  members  of  all  the  other 
tribunals  held  in  the  colony.  After  the  Revolu- 
tionary War,  these  courts  were  continued  by  differ- 
ent legislative  enactments. 

Chapter  44  of  the  Laws  of  1780,  passed  Febru- 
ary 26th  of  that  year,  empowered  justices  of  the 
peace,  mayors,  recorders,  and  aldermen  to  try  all 
cases  involving  one  hundred  pounds  or  less;  all 
actions  as  cases  of  debt,  slander,  trespass,  replevin, 

305 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

or  for  damages,  where  the  amount  demanded  was 
less  than  one  hundred  pounds,  were  heard  before 
one  of  the  justices  of  the  peace  of  any  of  the 
counties,  or  mayor,  recorder,  or  alderman  for  the 
cities  of  New  York  and  Albany  and  the  Borough  of 
Westchester. 

COURT   PROCEDURE. 

The  practice  of  the  Justices'  Courts  required  that 
the  defendant  appear  forthwith  if  he  were  served 
by  warrant,  but  if  by  summons,  he  was  to  appear 
not  less  than  six  days,  nor  more  than  twelve  days 
after  service.  Judgment  was  to  be  rendered  four 
days  after  the  trial. 

If  the  magistrate  who  issued  the  warrant  or  sum- 
mons was  absent  on  the  day  when  the  defendant 
made  his  appearance,  the  latter  was  brought  before 
any  other  magistrate  of  the  same  city,  town,  bor- 
ough, or  district.  The  process  against  freeholders 
and  inhabitants  having  families  was  by  summons 
only,  and  served  on  the  defendant  personally,  or,  if 
he  could  not  be  found,  a  copy  could  be  left  at  his 
house  in  the  presence  of  some  member  of  his  family, 
of  suitable  age  and  discretion,  who  was  to  be 
informed  of  the  contents  thereof,  at  least  six  days 
before  the  time  of  appearance  as  mentioned  in  the 
summons.  The  officer  who  served  the  summons 
was  required  to  endorse  upon  it  the  manner  of  its 
execution. 

Upon  the  defendant's  default  in  appearance,  and 
no  good  and  sufficient  reason  being  assigned  there- 

306 


COURT  PROCEDURE. 

for,  the  court  proceeded  with  the  trial  if  the  defend- 
ant had  been  personally  served ;  but  if  a  copy  of  the 
summons  had  been  left  at  his  residence,  a  warrant 
was  issued  for  his  immediate  appearance. 

Upon  the  plaintiff  filing  an  affidavit  with  the 
court,  to  the  eif  ect  that  he  was  in  danger  of  losing 
his  demand  by  the  issuance  of  a  summons,  it  was 
customary  for  the  magistrate  to  issue  a  warrant 
although  the  defendant  was  a  freeholder.  Upon 
defendant's  appHcation,  and  upon  furnishing 
security  therefor,  an  adjournment  of  the  trial 
would  be  granted. 

JURY  TRIALS. 

Either  party  might  demand  a  jury  of  six  free- 
holders to  try  the  case. 

The  following  oath  was  required  of  jurors,  the 
parties'  names  being  inserted  in  their  proper  places : 
"You  shall  well  and  truly  try  this  matter  in  differ- 
ence between  A  B,  plaintiff,  and  C  D,  defendant, 
and  a  true  verdict  give  according  to  the  evidence. 
So  Help  You  God." 

Witnesses  were  sworn,  under  a  form  of  oath 
which  has  survived  to  our  own  day:  "The  evidence 
which  you  shall  give  in  this  matter  in  difference 
between  A  B,  plaintiff,  and  C  D,  defendant, 
shall  be  the  truth,  the  whole  truth,  and  nothing 
but  the  truth.  So  Help  You  God." 

After  the  close  of  the  case,  and  when  all  the 
proofs  had  been  heard,  the  jury  retired  to  some  con- 

307 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

venient  place  until  a  verdict  was  agreed  upon ;  their 
decision  was  thereupon  announced  to  the  court,  and 
the  judge  rendered  judgment  accordingly. 

The  penalty  for  non-attendance  of  jurors,  after 
having  been  regularly  summoned,  was  a  fine  of  not 
more  than  fortj^  pounds  and  not  less  than  ten 
pounds,  in  the  court's  discretion.  These  fines  were 
applied  to  the  use  of  the  poor  of  the  district  where 
levied. 

Should  the  plaintiff  be  non-suited,  or  discontinue 
or  withdraw  his  action  without  the  consent  of  the 
defendant,  judgment  was  given  against  the  plain- 
tiff for  the  costs,  and  if  the  defendant  proved  that 
the  plaintiff  was  indebted  to  him,  judgment  was 
given  against  the  plaintiff  for  the  amount  of  his  in- 
debtedness and  the  costs. 

After  judgment,  execution  was  issued  to  the 
constable,  to  levy  on  the  debtor's  goods,  and  should 
there  not  be  sufficient  to  cover  the  amount,  he  could 
take  the  debtor's  body  into  custody.  This  continued 
to  be  the  practice  until  1831,  when  it  was  finally 
abolished. 

COSTS. 

The  costs  charged  up  in  an  action  seem,  on  first 
glance,  to  be  excessive:  The  cost  for  a  summons 
was  sixteen  shillings;  a  warrant,  twenty  shillings; 
administering  every  oath  or  affirmation,  ten  shil- 
lings; execution,  thirty  shillings;  subpoena  for  each 
witness,  ten  shillings;  venire  facias  to  summon  a 
jury,  twenty  shillings;  swearing  a  jury,  thirty  shil- 

308 


COSTS. 

lings;  witness  attending  on  summons,  or  otherwise, 
forty  shillings  per  day,  and  so  in  proportion  for  a 
longer  time;  constable  or  other  officer,  for  serving 
summons,  subpoena,  or  other  execution,  for  each 
mile  traveled,  or  under,  twenty  shillings,  and  for 
every  extra  mile  ten  shillings ;  serving  every  execu- 
tion, for  every  pound,  one  shilling,  and  summoning 
every  jury,  sixty  shillings.  Jurors  received  twenty 
shillings  per  man  for  each  case  tried,  and  when  at- 
tending court,  and  not  serving,  ten  shillings  per 
man.  But  the  act  provided  that  the  costs  in  any  one 
case  should  not  exceed  the  sum  of  forty  pounds. 

No  writ  of  certiorari  or  of  error  could  be  issued 
unless  an  affidavit  showing  reasonable  cause  was 
presented  to  the  justice  within  one  month  after 
judgment.  A  copy  of  such  affidavit  was  given  to 
the  adverse  party  when  required.  Upon  the  affirma- 
tion or  reversal  of  judgments  in  the  higher  courts, 
the  prevailing  part  was  awarded  costs. 

AMENDED  JURISDICTION. 

The  Supreme  Court  was  authorized  to  order  the 
attornej^-general  to  prosecute  all  justices  guilty  of 
unjust  practice.  Chapter  9  of  the  Laws  of  1780  re- 
duced the  jurisdiction  of  the  justices  of  the  peace, 
and  the  mayor,  recorder,  etc.,  to  actions  involving 
the  amount  of  ten  pounds  only,  and  the  fees  were 
reduced  to  one-twelfth. 

In  1807,  the  Justices'  Court  was  established  for 
the  city  of  New  York,  to  consist  of  three  judges, 

309 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

whose  jurisdiction  extended  to  cases  involving  an 
amount  from  twenty-five  dollars  to  fifty  dollars, 
and  to  all  marine  cases  between  master  and  mariner, 
though  in  excess  of  the  amount  above  mentioned. 
(Laws  of  1807,  chapter  139.) 

In  1817,  the  jurisdiction  of  the  Justices'  Court 
was  increased  to  one  hundred  dollars;  in  1819,  the 
name  of  this  court  was  changed  to  the  Marine  Court 
of  the  City  of  New  York,  and  by  the  statutes  of 
1846,  the  Marine  Court  was  authorized  to  try 
actions  of  assault  and  battery,  false  imprisonment, 
miscellaneous  prosecutions,  libel  and  slander,  and 
the  general  jurisdiction  was  increased  to  five  hun- 
dred dollars.  From  this  court  was  finally  evolved 
the  present  City  Court  of  the  City  of  New  York. 

ASSISTANT-JUSTICES^  COURTS. 

The  act  of  1807,  which  created  Justices'  Courts 
for  the  city  of  New  York,  also  provided  for  the 
establishment  of  Assistant-Justices'  Courts  in  each 
of  the  wards  of  the  city  of  New  York.  The  juris- 
diction of  these  courts  was  limited  to  actions  not 
exceeding  twenty-five  dollars;  they  were  the  sub- 
ject of  much  litigation,  and  after  having  under- 
gone many  changes,  became  finally  known  as 
"District  Courts,"  one  being  established  in  each 
district  of  New  York  City.  An  appeal  from  the 
courts  of  assistant- justices,  or  from  the  Marine 
Court,  was  taken  to  the  Mayor's  Court,  afterwards 
called  the  "Court  of  Common  Pleas." 

310 


CONSTITUTIONS  OF  1846  AND  1895. 


PRESENT  STATUS. 

As  at  present  organized  and  authorized,  this 
court  is  provided  for  by  the  amended  state  constitu- 
tion of  1846.  Quoting  from  article  VI,  section  17, 
of  the  constitution  of  1846,  we  have  the  following: 
"The  electors  of  the  several  towns  shall  at  their 
annual  town  meeting,  and  in  such  manner  as  the 
Legislature  may  direct,  elect  justices  of  the  peace, 
whose  term  of  office  shall  be  four  years.  In  case  of 
an  election  to  fill  a  vacancy  occurring  before  the 
expiration  of  a  full  term,  they  shall  hold  for  the 
residue  of  the  unexpired  term.  Their  number  and 
classification  may  be  regulated  by  law." 

The  provision  of  the  constitution  of  1895  which 
gives  these  courts  their  present  status,  is  article  VI, 
section  17,  as  follows:  "The  electors  of  the  several 
towns  shall  at  their  annual  town  meetings,  or  at 
such  other  time  and  in  such  manner  as  the  Legisla- 
ture may  direct,  elect  justices  of  the  peace,  whose 
term  of  office  shall  be  four  years.  In  case  of  an 
election  to  fill  a  vacancy  occurring  before  the 
expiration  of  a  full  term,  they  shall  hold  for  the 
residue  of  the  unexpired  term.  Their  number  and 
classification  may  be  regulated  by  law.  Justices  of 
the  peace  and  judges  or  justices  of  inferior  courts 
not  of  record,  and  their  clerks,  may  be  removed  for 
cause,  after  due  notice  and  an  opportunity  of  being 
heard,  by  such  courts  as  are  or  may  be  prescribed 
by  law.     Justices  of  the  peace  and  district  court 

311 


THE  COURTS  OF  THE  STATE  0¥  NEW  YORK. 

justices  may  be  elected  in  the  different  cities  of  this 
state  in  such  manner,  and  with  such  powers,  and  for 
such  terms  respectively,  as  are  or  shall  be  prescribed 
by  law;  and  all  other  judicial  officers  in  cities,  whose 
election  or  appointment  is  not  otherwise  provided 
for  in  this  article,  shall  be  chosen  by  the  electors  of 
such  cities  or  appointed  by  some  local  authorities 
thereof." 

Source — Art.  VI,  sec.  17,  of  the  amended  constitution 
of  1846. 


312 


CHAPTER  XXVI. 


CIRCUIT   COURTS   AND   COURTS   OF 
OYER  AND  TERMINER. 


Supreme  Court  Circuits — Oyer  and  Terminer 
— ^Division  of  State  into  Circuits — Foreign 
Counties — Special  Oyer  and  Terminer. 

supreme  court  circuit. 

By  act  of  April  19th,  1786,  one  or  more  justices 
of  the  Supreme  Court  were  required  to  hold  during 
vacation,  and  oftener  if  necessary,  Circuit  Courts 
in  each  of  the  counties  of  the  state  for  the  trial  of  all 
issues  triable  in  their  respective  counties.  Proceed- 
ings were  to  be  returned  to  the  Supreme  Court  for 
record,  and  final  judgment  rendered  according  to 
law.  The  justices  were  also  empowered  to  take 
Assizes  of  Novel  Disseizen,  or  any  other  assizes  in 
their  discretion,  at  the  circuit. 

In  1789,  the  Legislature  enacted  that  all  issues 
triable  by  jury  might  be  tried  either  at  Circuit  or  at 
the  bar  of  the  Supreme  Court,  without  an  order  to 
that  eiFect.  In  1797  an  order  became  necessary  for 
such  trial.  This  finally  led  to  the  abolition  of  this 
class  of  circuit  judges,  for  most  litigants  preferred 
to  have  their  cases  tried  before  the  Supreme  Court 

313 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

in  banc.  The  office  of  clerk  of  the  circuit  was  abol- 
ished on  February  12th,  1796,  and  its  duties  de- 
volved on  the  clerk  of  the  County  Courts. 

On  February  10th,  1797,  the  Legislature  passed 
a  law  directing  the  court  to  designate,  at  its  April 
term,  one  of  their  number  to  hold  Circuit  Courts, 
one  in  the  western,  one  in  the  eastern,  one  in  the 
middle,  and  one  in  the  southern  districts. 

OYER   AND   TERMINER. 

An  act  of  February  22nd,  1788,  directed  that 
justices  also  held  Courts  of  Oyer  and  Terminer  at 
the  same  time  as  Circuit,  and  continue  such  courts 
until  all  its  business  was  completed.  Two  or  more 
of  the  judges  or  assistant- judges  of  the  Court  of 
Common  Pleas  were  to  sit  with  the  justice  in  Oyer 
and  Terminer.  In  the  city  of  Albany  the  mayor, 
recorder,  and  aldermen  were  to  sit  with  the  justice 
and  judges  of  the  Court  of  Common  Pleas. 

In  New  York  City,  the  mayor,  recorder,  and 
aldermen,  or  at  least  two  of  them,  sat  alone  with 
the  justices.  These  local  magistrates  could  sit 
in  Oyer  and  Terminer  only  in  their  own  counties. 
The  court,  however,  had  power  to  direct  process  in 
any  city  or  county.  In  the  governor  was  vested 
power  to  issue  commissions  of  Oyer  and  Terminer 
whenever  he  deemed  it  advisable,  always  naming  the 
justice  of  the  Supreme  Court  in  the  commission 
with  the  others  whom  the  governor  and  council  saw 
fit  to  appoint.    Once  in  each  year  the  records  were 

314 


OYER  AND   TERMINER. 

to  be  sent  to  the  exchequer,  to  remain  on  record. 
The  office  of  clerk  of  Oyer  and  Terminer  was 
aboHshed  February  12th,  1796,  and  the  duties 
thereof  devolved  upon  the  county  clerks. 

DIVISION  OF  STATE  INTO  CIRCUITS. 

The  constitution  of  1821,  by  article  V,  section  5, 
provided  that  the  state  be  divided  into  a  convenient 
number  of  circuits,  not  less  than  four  nor  more  than 
eight,  subject  to  alteration  by  the  Legislature  from 
time  to  time,  as  the  public  good  dictated.  For  each 
circuit  a  judge  was  to  be  appointed  in  the  same 
manner,  to  hold  office  by  same  tenure  as  justices  of 
the  Supreme  Court;  their  powers  were  those  of  jus- 
tices of  the  Supreme  Court  in  chambers,  and  in  the 
trial  of  issues  joined  in  Supreme  Court.  Circuit 
Courts  were  held  at  least  twice  in  the  year  in  every 
county  of  the  state,  except  in  New  York,  where 
there  were  four.  Each  circuit  judge  appointed  the 
time  and  place  for  holding  Circuit  Courts  in  his 
circuit,  for  the  ensuing  two  years,  to  be  held  for  as 
many  days  as  the  judge  in  his  discretion  should 
designate.  The  court's  jurisdiction  extended  to 
the  trial  of  all  such  issues,  and  the  taking  of  all  de- 
positions by  default  or  otherwise  as  were  to  be 
tried  or  taken  before  such  court;  to  the  recording 
of  all  non-suits  and  defaults  before  them,  and  to 
return  all  proceedings  had  before  them  into  the 
Supreme  Court,  or  the  court  directing  same. 

Each  judge  of  the  Supreme  Court,  as  well  as 

315 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

circuit  judges,  had  power  to  hold  any  Circuit 
Court,  either  for  the  whole  time  for  which  such 
court  should  continue,  or  for  any  part  of  that  time. 
The  clerks  of  the  several  counties  were  clerks  of  the 
Circuit  Courts,  except  in  New  York  City  and 
County,  where  the  clerk  of  the  Supreme  Court  was 
also  clerk  of  the  Circuit  Court. 

A  Court  of  Oyer  and  Terminer  and  General  Jail 
Delivery  was  also  organized  under  this  constitution. 
At  least  two  courts  of  this  description  were  directed 
to  be  held  each  year  in  every  county,  except  New 
York,  where  court  was  to  be  held  at  least  four  times. 

Circuit  judges  could  preside  over  such  courts, 
and  the  judge  appointed  the  time  and  place  for 
holding  same,  which  usually  coincided  with  those  of 
the  Circuit  Court.  In  the  city  and  county  of  New 
York,  court  was  held  by  one  or  more  of  the  justices 
of  Supreme  Court,  or  of  the  circuit  judges,  or  by 
the  first  judge  of  the  Court  of  Common  Pleas, 
together  with  the  mayor,  recorder,  and  aldermen,  or 
any  two  of  them.  In  all  other  counties  of  the  state, 
they  were  held  by  a  justice  of  the  Supreme  Court 
or  circuit  judge,  together  with  at  least  two  of  the 
county  judges. 

FOREIGN   COUNTIES. 

In  the  counties  of  Albany,  Columbia,  and  Rens- 
selaer, the  mayor,  recorder,  and  aldermen,  or  any 
two  of  them,  and  in  Schenectady  the  mayor  and 
aldermen,  or  any  two  of  them,  might  sit  and  act  in  a 

316 


FOREIGN   COUNTIES. 

Court  of  Oyer  and  Terminer,  with  or  instead  of  the 
county  judges. 

The  court  had  power  by  inquest  of  the  grand 
jury  of  the  county,  to  inquire  into  all  crimes  and 
misdemeanors  within  the  county,  to  hear  and  deter- 
mine crimes  and  misdemeanors,  and  deliver  the  jail 
to  all  prisoners  according  to  law.  It  was  the  court's 
duty  to  try  all  indictments  found  by  the  grand 
jury,  and  triable  at  General  Sessions  of  the  peace, 
and  which  had  been  sent  by  order  of  the  latter  to 
Court  of  Oyer  and  Terminer,  or  which  had  been 
removed  there. 

SPECIAL  OYER  AND  TERMINER. 

The  governor,  with  the  consent  of  the  senate, 
could  issue  commissions  of  Oyer  and  Terminer,  as 
often  as  required.  The  judge  was  named  in  the 
commission,  and  no  proceedings  could  be  had  unless 
such  judge  was  present.  Every  such  commission 
named  the  time  and  place  where  court  was  to  be 
held,  and  was  recorded  in  the  office  of  the  secretary 
of  state,  and  a  copy  thereof  sent  by  the  secretary  of 
state  to  the  district-attorney  of  the  county  for 
which  such  commission  was  issued.  (District-attor- 
neys had  been  appointed  for  each  district. ) 

A  special  Court  of  Oyer  and  Terminer  for  any 
county  was  also  to  be  called  by  the  judge  of  the 
circuit  in  which  the  county  was  situated,  by  warrant 
under  his  official  hand  and  seal,  whenever  the  num- 
ber of  prisoners  in  the  jail  of  any  county,  or  the 

31T 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

importance   of   the    offences   charged   upon    such 
prisoners  rendered  the  court  necessary. 

The  judge  transmitted  such  warrant  to  the  dis- 
trict-attorney of  the  county,  who,  at  least  twenty 
days  before  holding  said  court,  was  required  to  issue 
a  precept,  directed  to  the  sheriff  of  the  county, 
requiring  the  latter  to  summon  grand  and  petit 
jurors;  bring  before  court  all  persons  in  the  county 
jail,  and  publish  a  proclamation,  notifying  all  nec- 
essary parties  to  appear  at  said  court ;  and  requiring 
all  officers  to  return  all  their  recognizances,  inquisi- 
tions, and  examinations  to  the  said  court  on  its 
opening. 

Every  Court  of  Oyer  and  Terminer  had  a  seal, 
and  all  processes  were  tested  in  the  name  of  the 
circuit  judge,  or  in  his  absence,  in  the  name  of  the 
chief -justice  of  the  Supreme  Court.  Courts  of 
Oyer  and  Terminer  could  direct  writs  into  any 
county  of  the  state.  In  all  counties  except  New 
York,  the  county  clerk  was  clerk  of  the  court.  In 
New  York  the  clerk  of  General  Sessions  officiated. 

Circuit  judges  had  jurisdiction  in  equity  matters 
on  their  circuits,  and  appointed  a  clerk  of  Equity 
Court  who  was  to  act  as  register  of  said  court,  with 
an  official  seal  for  all  equitj^  proceedings.  The 
salary  of  circuit  judges  in  1827  was  one  thousand 
two  hundred  fifty  dollars,  and  by  1835  it  had 
increased  to  one  thousand  six  hundred  dollars.  At- 
torneys and  counsellors  were  admitted  to  practice 
on  the  same  terms  as  prescribed  in  the  rules,  pre- 
pared by  Benson  in  1796. 

318 


SPECIAL  OYER  AND  TERMINER. 

The  Circuit  Courts  were  originally  substituted 
for  the  old  itinerant  sessions  of  the  Supreme  Court. 
The  judges  were  required  to  reside  within  their  cir- 
cuits, and  in  time  these  courts  narrowed  down  to 
county  rather  than  state  tribunals.  In  1823  the 
Circuit  Courts  were  given  equity  powers,  but  this 
power  was  soon  taken  away,  and  re-transferred  to 
the  chancellor,  but  circuit  judges  could  act  as  vice- 
chancellors  within  their  circuits. 


319 


CHAPTER  XXVII. 


COURT  FOR  THE  TRIAL  OF  IMPEACH- 
MENTS AND  THE  CORRECTION 
OF  ERRORS. 

Only  New  Court  under  Constitution — Im- 
peachment Procedure — Correction  of  Er- 
rors. 

only  new  court  under  constitution. 

A  court  officially  designated  as  the  Court  for  the 
Trial  of  Impeachments  and  Correction  of  Errors 
was  the  only  new  court  established  by  the  constitu- 
tion of  1777.  By  the  thirty-second  section  thereof, 
the  constitution  provided  that  such  a  court  be  insti- 
tuted under  regulations  to  be  established  by  the 
Legislature,  and  to  consist  of  the  president  of  the 
senate  pro  tempore,  senators,  chancellor,  and 
judges  of  the  Supreme  Court,  or  a  majority  of 
them. 

IMPEACHMENT  PROCEDURE. 

Impeachment  proceedings  were  regulated  by 
sections  33  and  34,  which  provided  that  power  to 
impeach  all  officers  of  the  state  for  official  malfea- 
sance and  corrupt  conduct  in  their  respective  offices 

321 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

be  vested  in  representatives  of  the  people  in  the 
assembly,  upon  a  majority  vote  of  two-thirds  of  the 
members  present. 

Before  proceeding  to  sit  as  a  Court  of  Impeach- 
ment, each  member  of  the  court  was  sworn  under  a 
prescribed  oath,  similar  to  that  administered  to  jur- 
ors, to  truly  and  impartially  determine  the  charge 
in  question,  according  to  the  evidence.  No  judg- 
ment of  the  court  was  valid  unless  assented  to  by 
two-thirds  of  the  members  then  present.  A  judg- 
ment of  impeachment  worked  as  a  forfeiture  of 
office,  and  debarred  the  guilty  person  from  again 
holding  or  enjoying  any  office,  or  place  of  honor, 
trust  or  profit,  under  the  state.  The  party  so  con- 
victed was  liable  to  indictment,  trial,  judgment, 
and  punishment  according  to  the  criminal  and  civil 
law  of  the  land. 

In  every  trial  of  impeachment  or  indictment  for 
crime  or  misdemeanor,  the  party  impeached  or  in- 
dicted was  allowed  counsel  as  in  civil  cases.  Should 
an  impeachment  be  prosecuted  against  the  chan- 
cellor or  any  of  the  judges  of  the  Supreme  Court, 
the  official  so  impeached  was  enjoined  from  exercis- 
ing the  functions  of  office,  until  his  acquittal. 

CORRECTION   OF  ERRORS. 

In  the  Correction  of  Errors,  the  constitution  pro- 
vided that  when  an  appeal  from  a  decree  in  equity 
should  be  heard,  the  chancellor  should  inform  the 
court  of  the  reasons  for  the  decree,  but  was  not 

322 


CORRECTION  OF  ERRORS. 

vested  with  the  right  to  vote  at  the  trial  or  in  the 
final  sentence.  If  a  judgment  of  the  Supreme 
Court  were  under  review,  the  judges  were  to  assign 
reasons  for  the  judgment,  but  have  no  voice  in  the 
final  affirmance  or  reversal  of  their  decision. 

In  pursuance  of  these  articles  of  the  constitution, 
the  Legislature  passed  an  act  on  November  23rd, 
1784,  organizing  said  court.  It  authorized  sessions 
to  be  held  during  the  meeting  of  the  Legislature, 
and  at  such  other  times  and  places  as  might  be 
ordered.  It  directed  a  seal  to  be  prepared,  and  a 
clerk  to  be  appointed,  and  prescribed  the  manner 
of  trying  impeachments. 

In  regard  to  the  Correction  of  Errors,  appeals 
were  allowed  to  it  from  the  Court  of  Chancery, 
Supreme  Court,  Court  of  Probates,  and  Admiralty 
Court,  except  in  cases  of  capture.  All  appeals 
from  probate  or  admiralty  decisions,  and  decretal 
orders  of  chancery,  were  to  be  made  in  fifteen  days. 
All  appeals  from  final  decrees  in  chancery,  and 
writs  of  error  upon  judgments  in  the  Supreme 
Court,  were  to  be  brought  within  five  years  after 
judgment  rendered,  or  decree  made.  The  presi- 
dent of  the  senate  presided,  and  had  a  vote  only  in 
case  of  a  tie. 

Writs  of  error  in  civil  cases  and  in  criminal  cases 
not  capital,  were  writs  of  right  and  issued  of  course, 
but  in  capital  cases  they  were  writs  of  grace.  The 
chancellor  issued  the  writs  in  all  cases,  but  in  capital 
cases,  only  granted  an  order  upon  motion  or  peti- 
tion, with  notice  to  the  attorney-general  or  state 
prosecutor. 

323 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

Under  the  constitution  of  1821,  the  court  re- 
mained the  same  as  previously,  except  that  a  ma- 
jority of  the  members  of  assembly  present  at  the 
session  were  sufficient  to  impeach. 

This  court  ceased  with  the  constitution  of  1846, 
after  an  existence  of  nearly  seventy  years.  Its 
powers  in  cases  of  impeachment  were  transferred  to 
a  new  court,  composed  of  the  president  of  the  sen- 
ate, the  senators  or  a  majority  of  them,  and  the 
judges  of  the  Court  of  Appeals  or  a  majority  of 
them.  Its  appellate  jurisdiction  was  delegated  to 
the  Court  of  Appeals. 


324 


PART  III 


A    GENERAL    REVIEW    OF    ALL    THE    COURTS, 

BEING  A  BRIEF  SKETCH  OF  EACH  FROM 

1623  TO  THE    PRESENT  TIME. 


CHAPTER   XXVIII. 


COURT  OF  GOVERNOR  AND  COUNCIL. 


Early  Dutch — Couet  Established  by  Stuy- 
VESANT — Body  of  Nine  Men. 

EARLY  DUTCH. 

The  demands  of  the  original  settlers  of  what  is 
now  the  state  of  New  York,  for  justice,  were  met 
by  the  institution,  in  1626,  of  a  legal  body  already 
referred  to  as  the  governor  and  council.  It  con- 
sisted of  the  governor  and  five  assistants,  to  whom 
\vas  attached  an  officer  known  as  the  schout  fiscal, 
who  exercised  the  duties  of  attorney-general,  prose- 
cuting officer,  and  sheriff. 

This  tribunal,  as  thus  organized,  continued  until 
1637.  The  records  of  this  period  are  lacking.  In 
1 640,  under  a  charter  of  exemptions  and  privileges, 
recommendation  was  made  for  a  court  to  consist  of 
the  governor  and  council,  to  hear  all  claims  and 
disputes,  assume  the  functions  of  an  Orphans'  and 
Surrogates'  Court,  take  cognizance  of  all  religious 
and  criminal  offences,  and  administer  justice  in 
general.  The  sessions  of  court  were  set  for  every 
Thursday  for  the  hearing  and  determining  of  civil 
and  criminal  processes. 

327 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 


COURT   ESTABLISHED    BY    STUYVESANT. 

The  arbitrary  tactics  of  Governor  Kieft  in  the 
conduct  of  this  court  led  to  a  popular  remonstrance, 
which  resulted  in  its  giving  place  to  a  new  court 
established  by  Governor  Stuyvesant  in  1647. 

This  new  court  was  composed  of  the  governor, 
who  was  to  be  presiding  justice,  and  in  his  absence 
a  vice-director,  so  called,  was  to  preside  in  his  stead, 
with  unlimited  jurisdiction,  subject  to  the  govern- 
or's opinion  on  momentous  questions.  In  criminal 
trials,  two  citizens  of  good  standing,  of  the  locality 
in  which  the  crime  was  committed,  were  to  assist 
the  governor,  as  associate  judges. 

BODY  OF  NINE  MEN. 

Dissatisfaction  with  this  court  resulted  in  judi- 
cial reform.  The  people  elected  eighteen  repre- 
sentatives, from  whom  nine  were  selected  by 
Stuyvesant,  to  constitute  a  permanent  council  to 
advise  the  governor  in  all  public  affairs.  This 
select  body  became  known  as  the  "  Body  of  Nine 
Men,"  and  was  vested  with  judicial  powers.  By 
rotation  of  three,  they  attended  each  session  of 
court,  and  their  decision  was  final,  except  that  ap- 
peal lay  to  the  governor  and  council,  upon  pay- 
ment of  one  pound  costs.  This  court  was  con- 
tinued for  seven  years. 


328 


CHAPTER  XXIX 


PATROONS'  COURTS. 


Grant  of  Land  to  Patroons — Jurisdiction  and 
Procedure — Patroons"  Courts  Abolished. 

grant  of  land  to  patroons. 

In  the  very  early  years  of  the  Dutch  possession, 
the  West  India  Company,  practically  the  proprie- 
tor of  New  Netherlands,  saw  the  necessity  of  en- 
couraging emigration  from  Holland  to  the  New 
World.  It  therefore  devised  the  following  plan  to 
further  its  object:  It  proposed  to  wealthy  citizens 
of  Amsterdam  and  neighboring  cities,  to  grant 
them  princely  tracts  of  land  in  New  Netherlands, 
upon  condition  that  they  induce  a  certain  number 
of  men,  usually  fifty,  to  go  to  the  New  World  to 
live.  These  wealthy  men,  styled  patroons,  were  to 
defray  all  expenses  of  the  voyage,  but  were  to  be 
free  from  all  but  special  taxes.  They  were  per- 
mitted by  their  grants  to  establish  courts  of  justice, 
of  which  they  were  to  be  the  judges.  Deputies, 
however,  could  be  appointed  by  the  patroons,  in 
case  the  latter  were  unable  to  hold  court  personally. 
In  fact,  these  patroons  were  given  the  general  pow- 
ers of  feudal  lords  with  complete  jurisdiction  over 

329 


THE  COURTS  OF  THE  STATE  OF  NEAV  YORK. 

the  property  and  lives  of  their  tenants,  who  were 
no  more  than  bond-slaves. 

JURISDICTION  AND   PROCEDURE. 

These  grants  were  given  in  1630,  and  upon  their 
arrival,  the  patroons  began  exercising  their  rights 
as  judges  with  a  high  hand.  Court  day  was  ap- 
pointed by  them,  and  all  actions  were  arbitrarily 
tried.  The  limit  of  their  jurisdiction  was  fifty 
guilders.  From  any  action,  involving  a  sum 
greater  than  the  above  mentioned  amount,  an  ap- 
peal was  allowed  to  the  director-general  and 
council  of  the  province.  But  this  right  of  appeal, 
as  mentioned  in  another  part  of  this  book,  was 
abrogated  by  the  patroon  in  a  manner  worthy  of 
the  iron  rule  of  a  manorial  lord.  Before  any  ten- 
ant was  permitted  to  enter  the  property  of  the 
patroon,  the  latter  exacted  a  written  promise  that, 
under  no  condition,  was  the  right  of  appeal  to  be 
invoked  by  the  tenant. 

There  was  a  Patroons'  Court  established  in  each 
localit}^  outside  of  the  populated  vicinity  of  New 
Amsterdam.  For  seven  years,  these  high-handed 
dispensers  of  justice  held  sway,  taking  cognizance 
of  all  manner  of  actions,  criminal  and  civil.  Their 
powers  did  not  even  stop  at  a  matter  of  life  and 
death,  and  it  was  nothing  to  witness  a  poor  wretch 
being  strung  up  to  the  highest  tree  at  the  order  of 
the  patroon. 


330 


ABOLISHED  BY  WEST  INDIA  COMPANY. 


PATROONS     COURTS  ABOLISHED. 

Fortunately,  the  West  India  Company,  the  re- 
cipient of  many  complaints  about  this  abuse  of 
power  by  the  patroons  and  the  resultant  injustice 
and  cruelty,  finally  saw  fit  to  admonish  the  tyrants. 
The  power  of  the  latter  seems  to  have  dwindled 
away  by  about  1637,  and  in  a  short  time  thereafter, 
the  West  India  Company  arranged  for  a  judicial 
system  throughout  New  Netherlands,  correspond- 
ing to  the  tribunals  of  justice  the  Dutch  were  ac- 
customed to  in  their  native  land. 


831 


CHAPTER  XXX. 


COURT    OF    SCHOUT,    BURGOMASTER 
AND  SCHEPENS. 

Popular  Court  Established — Change  of  Name 
— Jurisdiction  of  Court  —  Procedure  at 
Triai. — Depositions  of  Witnesses — Degrees 
OF  Evidence — Execution  of  Judgment — Ad- 
ditional Jurisdiction — Criminal  Branch  of 
Court — Additional  Courts. 

popular  court  established. 

In  1650  the  States  General  of  Holland  ordered 
the  institution  of  a  court  composed  of  two  burgo- 
masters, five  schepens  and  a  schout. 

Its  first  session  was  held  on  February  7th,  1653, 
when,  for  its  future  regulation,  it  was  announced 
that  sessions  of  court  would  be  held  for  "the  hearing 
and  determining  of  all  disputes  between  parties,  in 
the  building  heretofore  called  the  City  Tavern  and 
now  the  Stadt  House  (City  Hall),  on  every  Mon- 
day morning,  at  nine  o'clock."  At  its  next  meeting 
the  court  was  formally  organized  as  a  court  of  law. 

CHANGE  OF  NAME. 

On  June   12th,   1665,  by  official  proclamation, 

333 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

Governor  NicoUs  declared  this  court  disestablished, 
and  it  evolutionized  into  the  Mayor's  Court. 

During  its  existence  this  court  was  the  most  im- 
portant tribunal  yet  established  for  the  colony,  and 
the  earliest  on  record.  The  records  of  court  were 
kept  by  a  regular  clerk  or  secretary,  and  to-day 
afford  most  interesting  and  valuable  reading.  The 
historical  features  have  been  considered  in  the  prin- 
cipal text  of  this  volume. 

JURISDICTION  OF  COURT. 

The  magistrates  were  often  laymen.  The  court's 
jurisdiction  was  unlimited  in  all  but  capital  of- 
fences. A  stated  term  of  court  was  set  for  every 
fortnight,  unless  oftener  required. 

Upon  the  plaintiff's  complaint,  the  court  messen- 
ger summoned  the  defendant  to  attend  court  on 
the  next  court  day.  His  default  in  attendance  in- 
curred a  fine,  and  operated  as  a  waiver  of  any 
demurrer  to  the  court's  jurisdiction,  and  led  to  the 
issuance  of  a  new  mandate.  A  second  default  in- 
creased the  costs,  and  divested  the  defendant  of  all 
objections  to  jurisdiction  and  procedure.  Should 
the  defendant  again  fail  to  obey  the  court's  man- 
date, and  upon  the  issuance  of  a  third  citation  and 
default  thereto,  judgment  absolute  and  final  was 
rendered  against  the  defendant.  In  cases  in  which 
the  defendant's  presence  at  court  was  necessary,  it 
was  compelled  by  an  order  of  arrest. 


334 


DEPOSITIONS  OF  WITNESSES. 


PROCEDURE  AT  TRIAL. 

The  trial  of  a  case  was  conducted  according  to 
the  usual  rules  of  procedure,  which  prevail  in  most 
courts.  The  plaintiff  stated  and  proved  his  case 
and  the  defendant  answered.  A  material  issue  of 
fact  might  be  proved  by  the  sworn  testimony  of  a 
witness,  or  if  further  evidence  were  required,  an 
adjournment  was  had  until  the  following  court 
day.  Written  depositions  of  the  witnesses  were 
taken  before  a  notary  public,  for  filing  with  the 
court,  or  the  former  were  subpoenaed  to  testify  on 
the  adjourned  day. 

Cases  of  difficulty  which  required  ability  and 
special  fitness,  were  referred  to  arbitrators  of  the 
parties'  own  choice,  or  were  designated  by  the  court. 
If  the  arbitrators  were  unable  to  effect  a  settlement 
of  the  difficulty,  the  matter  was  brought  into  court 
and  there  disposed  of. 

Alternative  procedure  was  for  the  defendant  to 
move  that  the  plaintiff's  case  be  reduced  to  writing 
and  entered  on  the  court  record;  one  day's  time 
was  given  for  this  purpose.  Upon  resorting  to  this 
practice,  all  subsequent  pleadings  were  to  be  in 
writing;  these  consisted  of  defendant's  answer, 
plaintiff's  reply,  and  defendant's  rejoinder. 

DEPOSITIONS  OF  WITNESSES. 

It  was  the  duty  of  the  notary  before  whom  depo- 
sitions were  taken,  to  keep  a  record  thereof.     The 

335 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

deposition  of  a  non-resident  witness  could  be  taken 
upon  a  requisitoiy  letter,  before  a  magistrate  of 
the  locality  where  he  resided.  This  testimony  with 
the  other  pleadings,  formed  the  memorial,  and  was 
filed  with  the  court.  To  either  party  was  given  the 
right  within  a  limited  time,  to  examine  an  adverse 
witness  upon  cross-interrogatories,  on  any  matter 
disclosed  by  the  depositions.  In  rebuttal  or  reply, 
either  party  was  at  liberty  to  introduce  contradic- 
tory evidence. 

A  presumption  of  law  was  in  favor  of  the  au- 
thenticity of  documentary^  evidence  purporting  to 
be  in  a  party's  handwriting,  if  not  repudiated  by 
the  other  party  under  oath.  Account  books,  free 
from  clerical  or  technical  objections,  were  admis- 
sible in  behalf  of  the  proponent. 

DEGREES  OF  EVIDENCE. 

The  kinds  and  degrees  of  evidence  were  classified 
into  full  proof  and  half  proof.  The  former  was 
primary  or  original  evidence,  supported  by  not  less 
than  two  credible  witnesses,  or  documentary  evi- 
dence at  first  hand,  or  of  original  entry;  the  latter 
classification  included  direct  evidence,  or  that  of  an 
eyewitness.  Hears^  partook  of  the  degree  of  half 
proof,  and  was  admissible  in  corroboration  of  direct 
evidence.  Dying  declarations  were  admitted  as 
full  proof. 

EXECUTION  OF  JUDGMENT. 

After  judgment  was  rendered,  a  defendant  was 

336 


EXECUTION  OF  JUDGMENT. 

granted  fourteen  days  within  which  to  pay  one-half 
the  amount  of  the  judgment,  and  one  month  for 
the  payment  of  the  balance.  Further  arrears  in 
satisfying  judgment  led  to  more  summary  action 
for  its  collection.  The  court  messenger,  in  full 
panoply  of  legal  power,  exhibited  to  the  delinquent 
judgment-debtor,  a  copy  of  the  judgment,  and 
demanded  payment  within  twenty-four  hours. 
Further  delinquency  caused  an  attachment  to  issue 
against  the  movable  property,  in  the  presence  of 
a  schepen.  But  the  attachment  could  be  vacated 
at  the  end  of  six  days,  upon  payment  of  the  judg- 
ment and  all  costs.  Should  the  property  not  be  so 
redeemed,  it  was  offered  at  public  auction  on  a  des- 
ignated law-day,  and  sold  to  the  highest  bidder. 

A  sale  of  real  estate,  or  immovable  property,  was 
conducted  with  more  formality,  and  in  accordance 
with  an  unique  national  custom  transplanted  to  the 
colony  from  Holland.  The  equit}^  of  redemption 
was  longer  extended  than  in  the  sale  of  chattels, 
and  the  bidding  continued  during  the  burning  of 
a  lighted  candle;  at  the  extinction  of  the  candle, 
the  property  was  alloted  to  the  highest  bidder. 

The  civil  business  of  the  court  included  actions 
for  money  due  and  owing;  attachment  of  abscond- 
ing debtors'  propert}^;  actions  relating  to  real  es- 
tate; actions  to  recover  damages  for  injuries  to 
land  or  personal  property;  and  actions  in  replevin. 


337 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 


ADDITIONAL  JURISDICTION. 

In  actions  for  seamen's  wages,  and  for  breach  of 
promise  of  marriage,  the  defaulting  party  was 
subjected  to  imprisonment.  Actions  of  separation 
between  man  and  wife  were  adjusted  by  alloting 
the  children  equally  to  either  parent,  and  an  equal 
division  of  the  property  after  payment  of  debts. 

In  bastardy  proceedings,  the  male  was  obliged 
to  furnish  security  for  the  child's  support,  and  both 
parties  were  liable  to  fine  or  imprisonment,  unless 
public  retraction  were  made  in  open  court.  Dam- 
ages of  a  pecuniary  nature  were  not  allowed  for 
injuries  to  person  or  property. 

The  court's  powers  included  those  of  a  Court  of 
Admiralty,  and  a  Court  of  Probates.  The  probate 
branch  of  its  jurisdiction  gave  it  general  supervi- 
sion of  decedent's  estates,  through  curators  ap- 
pointed by  the  court.  An  adjunct  of  this  court 
was  the  Court  of  Orphan  Masters,  not  dissimilar, 
in  its  scope  and  object,  to  the  Surrogates'  Courts 
of  the  present  day.  The  masters  were  three  in 
number,  but  were  later  reduced  to  two. 

On  January  25th,  1658,  Stuyvesant  established 
a  schedule  of  statutory  fees  for  the  purpose  of  reg- 
ulating and  checking  the  exorbitant  exactions  of 
licensed  or  public  officers. 

CRIMINAL  BRANCH  OF  COURT. 

The  criminal  side  of  the  court  took  cognizance 

338 


CRIMINAL  BRANCH  OF  COURT. 

of  all  crimes.  The  executive  limb  of  the  law  in 
criminal  cases  was  the  schout.  On  his  requisition, 
and  upon  good  cause  shown,  a  defendant  might  be 
summoned  or  arrested  at  the  discretion  of  the  court. 
In  all  cases,  except  those  of  murder,  treason,  arson, 
or  rape  in  the  first  degree,  the  defendant  might  Be 
released  on  bail.  The  manner  of  trial  was  either 
public  or  private. 

The  former  was  conducted  according  to  the  rules 
of  evidence,  and  otherwise  like  public  trials;  the 
latter  form  of  trial  was  held  in  secret,  and  conduct- 
ed upon  written  interrogatories,  before  two  schouts. 
Fines,  imjDrisonment,  whipping,  the  pillory,  banish- 
ment, and  death  were  the  penalties  inflicted.  The 
infliction  of  the  death  penalty  required  thq  concur- 
rence of  the  director-general  and  his  council. 
The  general  act  of  disestablishment  of  June  12th, 
1665,  put  an  end  to  this  court. 

ADDITIONAL  COURTS. 

Separate  courts  were  established  for  each  of  the 
"  Five  Dutch  Towns,"  as  they  were  called,  on  Long 
Island.  These  courts  formed  a  circuit  over  which 
a  schout  presided,  whose  residence  was  at  Breuke- 
len,  now^  Brooklyn. 

In  1652,  a  court  for  the  English  at  Beverwyck 
was  established  by  Governor  Stuyvesant.  In  1656 
and  1659,  he  created  similar  courts  among  the  Eng- 
lish settlers  at  Canorasset  (Jamaica),  and  Middle- 

339 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

burgh  (JSTewton) .  The  foregoing  courts  composed 
the  colonial  judiciary  until  the  English  occupation 
on  September  6th,  1664. 

The  procedure  of  these  Town  Courts  was  prac- 
tically the  same  as  that  in  vogue  in  the  Court  of 
Burgomasters  and  Schepens  at  New  Amsterdam. 


340 


CHAPTER  XXXI 


MAYOR'S  COURT. 

First  English  Court — Functions  of  Court — 
Divided  into  Three  Tribunals. 

first  english  court. 

This  court  was  of  distinctively  English  origin, 
being  the  first  regularly  established  court  for  the 
city  of  New  York,  and  supplanted  the  Court  of 
Burgomasters  and  Schepens  which  had  previously 
existed.  It  was  officially  instituted  on  June  15th, 
1665,  by  the  mayor  and  aldermen,  to  whom  special 
authority  had  been  given  for  that  purpose. 

Its  records  were  in  Dutch  and  English,  and  no 
radical  departure  from  the  existing  procedure  was 
attempted.  The  Dutch  procedure  had  taken  deep 
root  in  the  colony,  and  it  was  considered  impolitic 
to  make  any  changes,  with  the  sole  exception  of 
trial  by  jury. 

In  this  court  all  cases  were  tried  by  jury,  on 
Tuesday  of  each  week.  Petty  cases  were  to  be  tried 
or  settled  out  of  court,  by  arbitrators,  a  practice 
which  greatly  curtailed  the  number  of  jury  trials. 

In  1669,  a  double  set  of  magistrates  was  nomi- 
nated, which  was  in  conformity  with  the  Dutch  cus- 

341 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

torn.  The  judges  in  office  nominated  two  persons 
for  each  office,  to  serve  for  two  years,  from  whom 
the  governor  selected  those  for  office.  In  1670  the 
official  term  was  reduced  to  one  year,  and  two  mag- 
istrates were  annually  appointed  by  the  governor, 
until  Governor  Dongan's  time. 

By  the  terms  of  what  is  known  as  the  "  Dongan 
Charter,"  it  was  provided  that  the  mayor  and  re- 
corder, or  three  or  more  of  the  aldermen,  not  ex- 
ceeding five,  should  be  justices  of  the  peace,  and 
any  three,  of  whom  the  mayor  or  recorder  should 
be  one,  were  empowered  to  hear  and  determine  all 
manner  of  petty  larcenies,  riots,  oppressions,  ex- 
tortions, and  other  trespasses  and  offences  in  the 
city. 

FUNCTIONS  OF  COURT. 

Heretofore  the  Mayor's  Court  had  acted  as  a 
city  council  and  court  of  justice.  Precedence  was 
given  to  litigation  or  the  legal  business  of  the  court, 
and  then  municipal  affairs  were  taken  up. 

The  charter  observed  a  distinction  between  the 
legislative  and  judicial  functions  of  the  mayor, 
recorder  and  aldermen,  which  differentiated  their 
functions  as  criminal  magistrates  from  those  they 
exercised  as  judges.  This  led  to  the  organization 
of  three  different  subordinate  branches  of  court, 
with  the  same  set  of  officers  for  all  three. 


342 


DISTINCT  FUNCTIONS  OF  COURT. 


DIVIDED   INTO  THREE  TRIBUNALS. 

These  branches  were  the  Common  Council,  the 
Mayor's  Court,  and  the  Sessions. 

To  the  Mayor's  Court  was  committed  the  civil 
business,  and  the  Sessions  was  the  criminal  side  of 
the  court.  From  this  period  dates  the  Court  of 
Quarter  Sessions,  which  after  1688  was  known  as 
the  Court  of  Sessions.  In  1821  the  Mayor's  Court 
became  the  Court  of  Common  Pleas  for  the  city 
and  county  of  New  York,  of  which  more  is  said 
hereafter. 


343 


CHAPTER  XXXII 


THE  GENERAL  COURT  OF  ASSIZE. 

Composition    of   Court — Origin — Jurisdiction 
— Jury  Trials. 

composition  of  court. 

The  General  Court  of  Assize  was  composed  of 
the  governor,  his  council,  and  two  justices  of  the 
peace  from  each  of  the  three  ridings.  This  court 
convened  at  the  Fort  in  New  York,  on  September 
28th,  1665;  its  sessions  were  held  annually,  but  a 
special  session  might  be  convoked  when  an  emer- 
gency arose.  The  Court  of  Oyer  and  Terminer,  or 
criminal  branch,  could  be  convened  for  securing  a 
more  speedy  trial,  if  a  longer  interval  than  two 
months  would  intervene  before  the  next  term  of 
the  Court  of  Assize.  The  direct  grounds  for  this 
summary  procedure  were  a  violation  of  the  Navi- 
gation Laws,  and  public  crimes  of  a  serious  nature. 

The  powers  of  the  Court  of  Assize  were  legal 
and  legislative,  and  its  jurisdiction,  which  was  both 
original  and  appellate,  was  wide  and  comprehen- 
sive. Its  records  show  a  varied  class  of  litigation, 
and  business  of  a  public  nature. 

345 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 


ORIGIN. 

The  origin  of  the  court  is  shrouded  in  mystery, 
but  it  seems  to  have  been  an  evolution  of  the  Court 
of  the  Director- General  and  Council,  under  Stuy- 
vesant's  administration. 

JURISDICTION. 

By  the  Duke's  laws  provision  was  made  for  an 
annual  term  of  court  to  be  held  at  New  York.  To 
it  was  given  original  and  appellate  jurisdiction, 
which  included  all  appeals  from  inferior  courts. 
Its  original  jurisdiction  extended  to  all  criminal 
actions,  including  capital  cases  and  infractions  of 
the  laws  of  navigation;  the  court  also  had  cogni- 
zance of  civil  and  equitable  actions  which  involved 
not  less  than  twenty  pounds.  A  prominent  feature 
of  this  court  was  its  legislative  aspect.  The  gov- 
ernor and  council  often  acceded  to  its  suggestions 
for  legal  reform,  or  for  direct  legislation. 

JURY  TRIALS. 

Jury  trials  prevailed  in  all  cases.  At  first  six 
constituted  the  jury,  but  this  number  was  eventu- 
ally increased  to  twelve.  It  was  customary  to  em- 
panel the  jury  even  when  an  appeal  was  heard  by 
the  court.  For  each  day's  attendance  at  court,  jur- 
ors received  ten  shillings. 

In  1684,  the  Court  of  Assize  was  abolished  by 
act  of  the  assembly  for  reasons  given  in  Part  I  of 
this  work. 

346 


CHAPTER   XXXIII 


COURTS  OF  SESSIONS. 


Courts  for  the  Three  Ridings — Jurisdiction — 
Procedure — The  Jury — Presiding  Justice- 
Appeals  FROM  Sessions — Under  State  Gov- 
ernment. 

courts  for  the  three  ridings. 

The  original  act  of  establishment  which  author- 
ized the  Court  of  Sessions  is  set  out  in  full  in 
Part  I  of  this  work.  Terms  of  court  were  appoint- 
ed to  be  held  three  times  each  year  in  each  riding. 
The  first  Tuesday  in  June  was  set  for  the  East 
Riding,  the  second  Tuesday  in  June  for  the  North 
Riding,  and  the  third  Tuesday  in  June  for  the 
West  Riding.  The  second  Court  of  Sessions  was 
held  the  first,  second,  and  third  Wednesdays  of  De- 
cember, and  the  third  sessions  on  the  first,  second, 
and  third  Wednesdays  of  March,  in  the  East, 
North,  and  West  Ridings,  respectively,  and  were 
not  to  exceed  three  days. 

JURISDICTION. 

The  venue  in  actions  on  contract  and  tort  was 
laid  in  the  county  where  the  cause  of  action  arose. 

347 


THE  COURTS  Or  THE  STATE  OE  NEW  YORK. 

Bail  was  accepted  in  cases  of  assault  and  battery, 
breach  of  the  peace,  and  like  offences,  and  if  not 
furnished,  the  prisoner  was  remanded  for  the  next 
session  of  court. 

Petty  actions  for  less  than  five  pounds  sterling 
were  referred  to  two  arbitrators,  who  were  gener- 
ally the  town  overseers,  for  settlement  out  of  court. 
If  for  any  reason  the  overseers  were  unable  to  act, 
the  constable  of  the  locality  was  to  select  two  im- 
partial persons.  Should  the  decision  of  the  latter 
prove  unsatisfactory  to  the  parties,  three  other  im- 
partial persons,  chosen  at  the  cost  of  the  party 
protestant,  were  to  render  final  judgment. 

Actions  of  not  less  than  five,  nor  more  than 
twenty  pounds,  were  the  jurisdictional  limitations 
as  to  amount,  and  no  appeal  was  permitted  in  cases 
under  twenty  pounds.  Upon  tender  of  costs  before 
final  judgment,  the  plaintiff  might  withdraw  his 
action. 

PROCEDURE. 

The  plaintiff's  complaint  was  to  be  in  writing, 
and  filed  in  the  clerk's  office,  eight  days  before  the 
trial.  The  judgment  was  endorsed  on  the  com- 
plaint or  answer,  as  the  case  might  be,  and  all 
papers  in  the  case  filed  with  the  clerk  of  the  court. 

Cases  were  tried  by  a  jury  selected  chiefly  from 
the  neighboring  overseers,  or  in  lieu  of  them,  from 
the  best  citizens  of  the  locality.  A  list  of  the  cases 
for  trial  was  given  to  the  clerk,  sheriff  or  under- 
sheriff,  who  was  to  issue  warrants  requiring  the 

348 


PROCEDURE. 

attendance  of  jurors  at  court.  The  jury  decided 
the  case  according  to  the  evidence  submitted,  and 
the  estabHshed  facts.  After  having  instructed  the 
jury  as  to  points  of  law  which  may  have  arisen 
during  the  course  of  the  trial,  the  governor  or 
senior  justice  then  rendered  the  decision  of  the 
court,  upon  receipt  of  the  jury's  verdict. 

THE    JURY. 

The  compensation  of  jurors  was  at  the  rate  of 
three  shillings,  six  pence  per  day,  paid  from  the 
court  fees  and  charges,  or  if  need  be,  from  the  pub- 
lic treasury.  The  jurors  were  not  to  exceed  seven, 
nor  be  less  than  six.  In  capital  cases,  it  was  within 
the  judges'  discretion  to  appoint  a  jury  of  twelve. 

In  those  cases  in  which  the  jury  could  not  agree 
upon  a  verdict,  a  special  or  hypothetical  verdict, 
addressed  to  the  sound  discretion  of  the  court,  was 
submitted,  for  the  judges'  interpretation  of  the 
law  and  facts.  If  the  jury  were  not  clear  on  a 
point  of  law  or  fact,  they  might  require  the  assist- 
ance of  the  bench.  The  concurrence  of  a  majority 
of  the  jury  was  sufficient  for  a  verdict,  except  in 
capital  cases,  in  which  an  unanimous  verdict  was 
necessary. 

Relationship  or  interest  disqualified  a  juror  from 
service;  but  if  once  accepted  and  sworn,  he  could 
not  be  challenged.  The  deliberations  of  the  jury 
were  conducted  in  secret,  and  any  infraction  of  the 
rule  of  secrecy  was  ground  for  a  fine  of  ten  shil- 

349 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

lings,  and  such  further  punishment  as  the  justices 
saw  fit  to  administer. 

PRESIDING  JUSTICE. 

The  oldest  justice  of  the  peace  was  to  officiate 
as  presiding  judge,  in  the  absence  of  the  governor, 
lieutenant-governor,  or  any  of  the  council.  If  he 
were  unavailable,  the  justices  selected  one  of  their 
number  to  discharge  this  function.  A  privilege  of 
the  court  allowed  justices  of  the  peace  to  preside 
at  any  of  the  town  courts  within  their  jurisdiction. 

Legal  fees  were  allowed  the  justices  of  the  peace, 
and  the  sheriff  and  his  subordinates.  For  nominat- 
ing three  arbitrators  in  a  case  involving  less  than 
forty  shillings,  a  justice  was  paid  seven  shillings, 
six  pence;  in  actions  of  slander  and  the  like,  one 
shilling;  for  subpoenaing  a  party,  six  pence;  no  fee 
was  allowed  for  criminal  or  capital  warrants,  or  for 
officiating  as  a  justice  on  the  bench. 

Justices  of  the  peace  were  ineligible  to  act  as 
attorneys,  unless  specially  assigned  by  the  court. 
For  absence  from  his  duties  on  the  bench,  he  was 
fined  at  the  rate  of  ten  pounds  per  da}^  Petty 
constables  were  fined  five  pounds  for  each  day's  ab- 
sence. However,  justices  might,  on  proper 
grounds,  remit  these  fines. 

APPExVLS  FROM   SESSIONS. 

An  appeal  from  the  Court  of  Sessions  lay 
directly  to  the  Court  of  Assize,  but  a  justice  was 

350 


APPEALS  FROM   SESSIONS. 

disqualified  from  officiating  in  both  the  appellate 
and  lower  court.  The  appellant  was  required  to 
indemnify  the  respondent,  should  his  appeal  prove 
unsuccessful,  and  before  appealing,  the  former  was 
to  furnish  security  for  costs. 

Criminal  appeals  could  be  taken  by  the  appellant 
giving  security  for  good  behavior.  In  capital  cases 
the  appellant  remained  in  jail  until  the  next  assize, 
if  held  within  two  months.  The  grounds  of  appeal, 
and  the  security  on  appeal,  were  filed  with  the  clerk 
six  days,  at  least,  before  court  day.  Ten  shillings 
was  the  charge  for  an  appeal,  and  two  shillings,  six 
pence  for  entering  the  same. 

UNDER  STATE  GOVERNMENT. 

Courts  of  Sessions  for  the  several  counties  were 
continued  under  the  state  government  until  finally 
abolished  in  all  counties  except  Xew  York,  by  the 
constitution  of  1895. 


351 


CHAPTER  XXXIV. 
COURT  OF  ADMIRALTY. 


Original  Admiralty  Jurisdiction — First  Reg- 
ular Court — Appeals  from  Court  —  State 
Court  of  Admiralty. 

original  admiralty  jurisdiction. 

A  temporary  prize  court  of  admiralty  was  estab- 
lished in  1690,  to  take  cognizance  of  some  French 
vessels  captured  on  the  high  seas. 

Governor  Leisler  commissioned  one  De  Lanoy 
as  judge  of  a  Court  of  Admiralty,  with  eight  asso- 
ciates to  aid  him,  six  of  whom,  with  De  Lanoy,  to 
constitute  a  full  bench.  A  registrar  and  marshal 
were  also  appointed.  At  the  end  of  five  days,  for 
lack  of  further  business,  this  court  was  discon- 
tinued. 

FIRST   REGULAR    COURT. 

The  regular  Court  of  Admiralty  for  the  prov- 
ince was  established  by  Governor  Fletcher,  under 
special  authorization  from  the  Lords  of  Admiralty, 
on  April  29th,  1697,  and  included  a  judge,  regis- 
trar, and  marshal.  Upon  the  disability  of  any  of 
the  officers  to  act,  the  governor  was  to  appoint 

353 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

others  in  their  place,  subject  to  ratification  by  the 
Lords  of  Trade  in  England. 

On  November  5th,  1760,  a  special  commission 
was  issued  for  the  trial  of  crimes  committed  on  the 
high  seas. 

A  report  on  this  court,  made  by  Governor  Tryon 
to  the  Lords  of  Trade,  shows  that  the  judges  and 
other  officers  held  their  office  by  commission  from 
the  crown;  that  they  received  no  salary;  that  the 
procedure  followed  was  in  conformity  with  that  of 
England,  and  that  its  jurisdiction  had  been  ex- 
tended to  assume  cognizance  of  every  breach  of  the 
trade  laws  then  in  force  in  England. 

APPEALS  FROM  COURT. 

Up  to  1763,  appeals  from  the  Court  of  Admir- 
alty were  heard  by  the  High  Court  of  Admiralty 
in  England.  In  the  same  year,  this  appellate  juris- 
diction was  bestowed  on  any  court  of  record  in  the 
province.  A  High  Court  of  Admiralty  for  all 
America  was  established  thereafter,  to  hear  all  ap- 
peals relating  to  maritime  affairs. 

STATE  COURT  OF  ADMIRALTY. 

This  court  existed  for  a  brief  period  under  the 
state  government.  Its  origin  is  to  be  traced  to  the 
maritime  conditions  resulting  from  a  state  of  war. 
On  November  25th,  1775,  the  Continental  Con- 
gress recommended  that  the  colonies  establish 
courts  to  adjudicate  questions  that  might  arise  on 

354 


STATE  COURT  OF  ADMIRALTY. 

the  seas  during  the  war.  All  trials  were  to  be  by 
jury.  The  High  Court  of  Admiralty  of  the  state 
of  New  York  was  accordingly  authorized. 

Pursuant  to  an  act  of  Congress  passed  October 
13th,  1777,  appeals  could  be  taken  from  this  court 
to  a  committee  of  their  body.  Under  the  Articles 
of  Confederation  an  act  was  passed  establishing  a 
court  to  hear  appeals,  termed  the  Court  of  Appeals 
in  Cases  of  Capture. 

On  February  14th,  1787,  the  State  Legislature 
passed  an  act  to  prevent  encroachments  of  the  Fed- 
eral Courts,  providing  that  they  should  not  have 
cognizance  of  transactions  within  the  state  boun- 
daries. The  present  United  States  Constitution 
vested  admiralty  jurisdiction  exclusively  in  the 
Federal  Courts,  and  consequently  the  state  court 
ceased  to  exist,  upon  the  adoption  of  that  instru- 
ment by  the  state  in  1789.  The  powers  of  the  court 
have  since  been  exercised  by  the  United  States  Dis- 
trict Courts. 


355 


CHAPTER  XXXV. 
COLONIAL  APPELLATE  COURTS, 


Early  Appellate  Jurisdiction — Under  State 
Constitution. 

EARLY   appellate   JURISDICTION. 

Among  the  Dutch,  appeals  were  to  be  taken  to 
the  governor  and  council  and  from  them  to  the 
States-General  in  Holland. 

When  the  English  obtained  possession,  it  was 
provided  by  the  Duke's  laws,  that  the  General 
Court  of  Assize  have  appellate  jurisdiction  in  all 
actions  involving  an  amount  above  twenty  pounds. 
Besides  this  appellate  jurisdiction,  it  also  had  orig- 
inal jurisdiction  in  criminal  prosecutions,  and  espe- 
cially in  capital  and  treasonable  offences. 

When  the  Court  of  Assize  was  aboHshed  in  1684, 
appellate  jurisdiction  devolved  upon  the  governor 
and  council,  in  any  actions  involving  an  amount  of 
one  hundred  pounds  or  over,  and  an  appeal  was 
allowed  to  the  king  and  privy  council  if  the  amount 
exceeded  three  hvmdred  pounds.  All  these  points 
are  more  fully  discussed  in  the  first  part  of  this 
work.  The  territory  over  which  the  colonial  courts 
for  appeals  had  jurisdiction,  covered  that  part  of 

357 


THE  COURTS  OF  THE  STATE  OF  NEA\^  YORK. 

the  New  World  originally  granted  to  the  Duke  of 
York,  subject  to  the  many  changes  in  the  bound- 
aries of  the  colonies,  that  took  place  prior  to  the 
Revolution. 

UNDER  STATE  CONSTITUTION. 

Immediately  after  the  war,  the  people,  flush  in 
their  newly  acquired  power,  wished  to  deprive  the 
governor  of  some  of  his  prerogative  rights.  There- 
fore, a  separate  court,  known  as  the  Court  for  the 
Trial  of  Impeachments  and  Correction  of  Errors, 
where  the  governor  still  retained  his  seat  as  judge, 
but  in  conjunction  with  many  other  state  officials, 
was  created  by  the  first  constitution  of  the  state. 
The  state  appellate  courts  are  separately  treated  in 
another  part  of  this  book. 


358 


CHAPTER  XXXVI 


EXCHEQUER  COURT. 


Colonial  Exchequer  Jurisdiction — State 
Court. 

colonlill  exchequer  jurisdiction. 

How  Chief -Justice  Attwood  inferred  that  the 
Supreme  Court  of  Judicature  had  exchequer  juris- 
diction in  the  admiralty  case,  is  fully  treated  in  Part 
I  of  this  work.  There  never  was  a  separate  Ex- 
chequer Court  during  the  colonial  period.  Actions 
concerning  fines  and  debts  due  the  government, 
were  sometimes  brought  in  the  Supreme  Court,  and 
as  often  in  the  Court  of  Chancer}^  but  always  hotly 
contested  by  the  colonists  as  an  abuse  of  the  powers 
of  both  courts  to  hear  such  actions.  The  nature  of 
an  Exchequer  Court  is  solely  equitable  and  at  one 
time  when  the  feeling  against  the  Chancery  Court 
ran  high,  and  it  looked  as  if  no  equity  court  would 
exist  in  the  colony,  the  judges  of  the  Supreme 
Court  made  it  known  that  they  would  hear  all 
equitable  actions  in  their  exchequer  branch.  But 
the  astute  governor  of  the  time  was  able  to  over- 
ride this  crisis  and  the  Court  of  Chancery  continued 
to  exercise  exchequer  jurisdiction.     The  last  men- 

359 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

tion  of  exchequer  business  during  the  colonial 
period  is  the  matter  of  Governor  Dunmore  against 
Lieutenant-Governor  Golden  in  1770. 

STATE  COURT. 

On  February  9th,  1786,  the  Exchequer  Court 
was  re-organized  as  a  branch  of  the  Supreme  Court, 
for  the  better  levying  and  accounting  of  fines,  for- 
feitures, issues,  amercements,  and  debts  due  the 
people  of  the  state.  The  junior  justice  of  the  Su- 
preme Court,  or  any  of  the  associate  justices,  in  his 
absence,  was  constituted  judge  of  the  court,  to  de- 
termine all  causes  involving  above,  and  proceed 
according  to  course  of  exchequer.  A  seal  was 
directed,  and  a  clerk  appointed.  William  Popham 
was  the  only  clerk  of  the  court,  holding  office  from 
the  date  of  his  appointment,  July  17th,  1786,  until 
January  1st,  1830,  when  the  court  was  abolished 
pursuant  to  the  general  act  of  repeal  of  December 
10th,  1828. 


360 


CHAPTER  XXXVII. 


COURT  OF  PROBATES. 


Probate  Jurisdiction  among  Dutch — Under 
State  Government — Later  Probate  Juris- 
diction. 

PROBATE  jurisdiction  AMONG  DUTCH. 

From  the  first  establishment  of  a  judiciary  in 
New  Netherlands,  the  director-general  had  probate 
jurisdiction  and  charge  of  intestates'  property. 
Later  some  jurisdiction  of  decedents'  property  was 
vested  in  the  Schout,  Burgomasters  and  Schepens 
Court.  But  about  the  year  1655,  a  separate  Court 
of  Orphan  Masters  was  created  by  Stuyvesant, 
which  continued  in  existence  until  the  English 
occupation. 

Among  the  English,  in  the  early  colonial  period, 
the  governor  granted  probates  through  his  Prerog- 
ative Office,  but  he  had  the  power  to  appoint  a  sur- 
rogate, or  deputy,  to  act  in  his  stead  in  remote 
sections  of  the  province.  The  secretary  of  the 
province  often  acted  in  the  governor's  place  in  the 
discharge  of  the  duties  of  the  Prerogative  Office. 
About  twenty  years  prior  to  the  Revolution  a  sep-. 
arate  judge  of  probates  was  appointed,  although 

361 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

the  probate  of  wills  was  required  to  be  heard  by  the 
governor  or  his  secretary  up  to  the  Revolution. 

UNDER   STATE   GOVERNMENT. 

During  the  war,  the  Legislature  by  act  of  JMarch 
16th,  1778,  divested  the  governor  of  the  powers 
he  possessed  in  the  Surrogate  and  Probate  Courts 
and  transferred  them  to  a  separate  judge  of  a 
Court  of  Probates,  who  was  vested  with  all  and 
singular  the  powers  and  authorities  that  the  gov- 
ernor for  the  time  being  had  and  exercised  as  judge 
of  the  Prerogative  Court.  The  only  reservation 
was  as  to  the  nomination  of  surrogates  for  the  sev- 
eral counties,  who  were  to  be  appointed  by  the 
Council  of  Appointment  and  commissioned  under 
the  Great  Seal.  The  same  act  directed  the  judge 
of  the  Court  of  Probates  to  have  a  seal  of  his  court 
made.  By  an  act  passed  in  1787,  a  surrogate  for 
each  countj^  was  authorized,  to  be  designated  by 
appointment. 

The  judge  of  the  Court  of  Probates  had  juris- 
diction in  cases  of  decease  of  citizens  without  the 
state,  or  of  non-residents  within  the  state,  and  in  all 
appeals  from  the  Surrogates'  Courts  in  the  entire 
state.  All  appeals  from  the  decisions  of  the  judge 
of  the  Court  of  Probates  could  be  brought  to  the 
Court  for  the  Correction  of  Errors. 

LATER  PROBATE  JURISDICTION. 

An  act  of  March  10th,  1797,  provided  that  court 

362 


LATER  PROBATE  JURISDICTION. 

be  held  at  Albany,  and  that  the  judge  and  clerk 
remove  all  papers  and  documents  to  that  city,  and 
reside  there.  This  court  was  abolished  March  21st, 
1823,  and  its  records  deposited  with  the  clerk  of  the 
Court  for  the  Correction  of  Errors,  and  its  juris- 
diction conferred  on  the  chancellor.  But  the  Sur- 
rogates' Courts  continued,  and  are  still  in  existence. 


363 


CHAPTER  XXXVIII 
COURT  OF  CHANCERY. 


Early  Equity  Practice  —  Establishment  of 
Court — Re-organization  by  Nanfan — Rec- 
ognition BY  First  Constitution  of  State — 
Changes  by  Constitution  of  1821 — ^^Succes- 
sive Changes  and  Abolition. 

early  equity  practice. 

The  forms  and  jurisdiction  of  chancery  had  been 
originally  exercised  by  the  Town  Courts,  the  Court 
of  Sessions,  and  the  Court  of  Assize,  which  con- 
formed their  procedure  as  closety  as  possible  to  the 
High  Court  of  Chancery  in  England.  In  the  ex- 
ercise of  chancery  jurisdiction,  it  was  customary  to 
grant  divorce  on  the  ground  of  adultery,  a  continu- 
ation of  a  Dutch  custom.  The  prevalent  procedure 
in  all  equitable  actions  in  these  courts  was  by  bill  in 
equity;  an  answer  was  interposed,  witnesses  were 
examined  as  in  England,  and  trial  by  jury  was 
waived. 

ESTABLISHMENT    OF    COURT. 

In  1683,  a  High  Court  of  Chancery  was  estab- 
lished, which  was  vested  with  exclusive  chancery 

365 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 


CHANGES  BY  CONSTITUTION  OF  1821. 

By  the  constitution  of  1821,  it  was  provided  that 
the  chancellor  be  appointed  by  the  governor  with 
consent  of  the  senate,  during  good  behavior,  or 
until  the  age  limit  of  sixty  years.  On  an  appeal 
from  the  chancellor's  decision  to  the  Court  for  the 
Correction  of  Errors,  of  which  the  chancellor  was 
a  member,  it  was  provided  that  he  should  be  given 
an  opportunity  to  justify  his  decision,  but  should 
have  no  voice  in  the  final  judgment.  Provision  was 
likewise  made  for  vesting  equity  powers  in  circuit 
judges,  subject  to  the  right  of  appeal  to  the  chan- 
cellor. An  act  was  accordingly  passed  on  April 
17th,  1823,  which  conferred  on  the  eight  circuit 
judges  the  powers  and  jurisdiction  of  the  chan- 
cellor in  equity  cases,  subject  to  the  latter 's  appel- 
late jurisdiction.  A  clerk  of  the  court,  who  was 
also  to  act  as  register,  was  to  be  appointed  by  the 
judges  for  their  respective  circuits;  and  to  the 
judge  was  assigned  the  duty  of  devising  a  seal  for 
the  use  of  the  clerk  in  equity  proceedings.  These 
courts  were  subsequently  abolished,  and  general 
equity  jurisdiction  was  vested  in  the  chancellor; 
but  the  circuit  judges  acted  as  vice-chancellors  in 
their  respective  circuits. 

Provision  was  also  made  by  the  constitution  for 

the  appointment  of  masters  and  examiners  in 
chancery  by  the  governor  and  senate,  for  the  term 
of  three  years,  unless  sooner  removed ;  on  the  chan- 

368 


CHANGES  BY  CONSTITUTION  OF  1821. 

cellor  was  conferred  power  to  appoint  registers  and 
assistants  to  hold  office  during  the  former's 
pleasure. 

SUCCESSIVE  CHANGES  AND  ABOLITION. 

On  March  27th,  1839,  the  Legislature  created  an 
assistant  vice-chancellor  for  the  first  circuit,  for 
the  term  of  three  years,  to  be  appointed  in  the  same 
manner  as  the  chancellor  and  vice-chancellor.  In 
1840  this  office  was  made  permanent  and  the  vice- 
chancellor  directed  to  hold  special  terms  by  order 
of  the  chancellor,  within  the  municipal  limits  of  the 
city  of  New  York.  The  same  enactment  made  pro- 
vision for  the  appointment  of  a  vice-chancellor  for 
the  eighth  circuit,  to  hold  court  at  Rochester. 

The  constitution  of  1846  officially  terminated 
the  Court  of  Chancerv,  and  its  existence  ceased  on 
the  first  jMonday  of  January,  1847.  Its  powers 
were  transferred  to  the  Supreme  Court  organized 
under  the  constitution  of  1846,  and  its  records  filed 
with  the  newly  created  Court  of  Appeals. 


369 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 


CHANGES  BY  CONSTITUTION  OF  1821. 

By  the  constitution  of  1821,  it  was  provided  that 
the  chancellor  be  appointed  by  the  governor  with 
consent  of  the  senate,  during  good  behavior,  or 
until  the  age  limit  of  sixty  years.  On  an  appeal 
from  the  chancellor's  decision  to  the  Court  for  the 
Correction  of  Errors,  of  which  the  chancellor  was 
a  member,  it  was  provided  that  he  should  be  given 
an  opportunity  to  justify  his  decision,  but  should 
have  no  voice  in  the  final  judgment.  Provision  was 
likewise  made  for  vesting  equity  powers  in  circuit 
judges,  subject  to  the  right  of  appeal  to  the  chan- 
cellor. An  act  was  accordingly  passed  on  April 
17th,  1823,  which  conferred  on  the  eight  circuit 
judges  the  powers  and  jurisdiction  of  the  chan- 
cellor in  equity  cases,  subject  to  the  latter's  appel- 
late jurisdiction.  A  clerk  of  the  court,  who  was 
also  to  act  as  register,  was  to  be  appointed  by  the 
judges  for  their  respective  circuits;  and  to  the 
judge  was  assigned  the  duty  of  devising  a  seal  for 
the  use  of  the  clerk  in  equity  proceedings.  These 
courts  were  subsequently  abolished,  and  general 
equity  jurisdiction  was  vested  in  the  chancellor; 
but  the  circuit  judges  acted  as  vice-chancellors  in 
their  respective  circuits. 

Provision  was  also  made  by  the  constitution  for 

the  appointment  of  masters  and  examiners  in 
chancery  by  the  governor  and  senate,  for  the  term 
of  three  years,  unless  sooner  removed ;  on  the  chan- 

368 


CHANGES  BY  CONSTITUTION  OF  1821. 

cellor  was  conferred  power  to  appoint  registers  and 
assistants  to  hold  office  during  the  former's 
pleasure. 

SUCCESSIVE   CHANGES  AND   ABOLITION. 

On  March  27th,  1839,  the  Legislature  created  an 
assistant  vice-chancellor  for  the  first  circuit,  for 
the  term  of  three  years,  to  be  appointed  in  the  same 
manner  as  the  chancellor  and  vice-chancellor.  In 
1840  this  office  was  made  permanent  and  the  vice- 
chancellor  directed  to  hold  special  terms  by  order 
of  the  chancellor,  within  the  municipal  limits  of  the 
city  of  New  York.  The  same  enactment  made  pro- 
vision for  the  appointment  of  a  vice-chancellor  for 
the  eighth  circuit,  to  hold  covn*t  at  Rochester. 

The  constitution  of  1846  officially  terminated 
the  Court  of  Chancery,  and  its  existence  ceased  on 
the  first  jMonday  of  January,  1847.  Its  powers 
were  transferred  to  the  Supreme  Court  organized 
under  the  constitution  of  1846,  and  its  records  filed 
with  the  newly  created  Court  of  Appeals. 


369 


CHAPTER  XXXIX. 


SUPREME  COURT. 


Colonial  Supreme  Tribunals — Creation  of 
Court — First  Chief-Justice — Changes  in 
Salary — Terms  of  Court — Circuits — Legis- 
lative Changes — Court  under  First  Consti- 
tution— Sessions  of  Court — First  Rules — 
Appointment  of  Reporter  and  Clerk — Con- 
stitutional Changes^  1821  —  Changes  in 
Terms — Changes  in  Clerks'  Offices — Elec- 
tive Judges — Number  of  Judges — Constitu- 
tional Changes. 

colonial  supreme  tribunals. 

A  complete  history  of  this  court  having  been 
ah-eady  given,  any  further  information  is  intended 
to  be  merely  supplemental  to  what  has  already  been 
related,  and  for  the  purposes  of  the  general  re- 
view of  all  the  courts  of  the  state. 

Its  growth  has  been  traced  from  the  Court  of 
Assize,  established  in  1665,  and  the  Court  of  Oyer 
and  Terminer,  which  was  instituted  in  1683. 

CREATION    OF   COURT. 

In  1691,  the  committee  for  the  establishment  of 

3T1 


THE  COURTS  OF  THE  STATE  OF  NEAY  YORK. 

Courts  of  Judicature  created  a  Supreme  Court, 
composed  of  five  judges.  An  innovation  to  the 
existing  procedure  was  the  inauguration  of  trial  by 
jury,  a  practice  which  was  waived  in  case  of 
defendant's  default  to  plaintiff's  pleading. 

On  November  11th,  1692,  the  provincial  assem- 
bly continued  these  courts  for  two  years.  An 
immediate  offshoot  of  this  court,  was  that  of  Oyer 
and  Terminer,  established  by  Governor  Dongan 
in  1683,  with  criminal  jurisdiction,  and  civil  juris- 
diction for  amounts  in  excess  of  five  pounds. 
Provision  was  made  for  an  annual  session  of  court 
in  each  county. 

As  established  in  1691,  and  modified  by  ordi- 
nances of  1699  and  1704,  this  court  continued  until 
1777.  The  constitution  of  1777  re-organized  and 
perpetuated  this  court,  providing  for  the  appoint- 
ment, qualification  and  tenure  of  judges. 

CHANGE  BY  ORDINANCE. 

The  modification  of  1699  provided  that  a  justice 
of  the  Supreme  Court,  in  conjunction  with  two  jus- 
tices of  the  peace,  should  hold  an  annual  term  of 
circuit  court  in  each  county,  and  that  the  Supreme 
Court  convene  in  New  York  City  on  the  first  Tvies- 
days  in  April  and  October,  for  sessions  of  five  days 
each. 

The  modification  effected  by  the  ordinance  of 
1704,  vested  the  Supreme  Court  with  the  jurisdic- 
tion and  powers  of  the  English  court  of  Queens 

372 


CREATION  OF  COURT. 

Bench,  Common  Pleas  and  Exchequer.  An  amend- 
ment of  1692,  ordained  a  circuit  of  the  Supreme 
Court  for  the  remoter  districts,  to  be  held  once  a 
year,  by  a  judge  under  special  commission.  Unless 
notices  of  appeal  and  complaints  were  filed  previ- 
ously to  the  term,  court  was  not  held  for  that  year. 

To  further  the  ends  of  justice,  two  local  justices 
of  the  peace  acted  as  associates  of  the  judge.  The 
procedure  of  the  Supreme  Court  in  the  city  of  N^w 
York  prevailed. 

Sessions  of  court,  were,  under  the  act  authorizing 
the  Circuit  Courts,  set  for  the  first  Tuesdays  in 
April  and  October,  for  the  county  of  Orange;  for 
the  first  Tuesday  in  May  for  the  city  and  county 
of  Albany;  for  the  last  Tuesday  in  June  for  the 
county  of  Westchester;  for  the  first  Tuesday  in 
August  for  Kings  county,  and  for  the  second 
Tuesday  in  June  for  Richmond  county.  Court 
was  to  continue  for  two  days,  and  the  New  York 
term  was  reduced  from  eight  to  five  days. 

The  courts  were  extended  under  act  of  October 
24th,  1695,  for  two  years  longer,  and  another  act 
of  April  21st,  1697,  made  provision  for  an  addi- 
tional year.  Because  of  failure  to  pass  an  extension 
act  in  1698,  all  existing  courts  had  ceased  for  want 
of  legislative  sanction.  Governor  Bellamont  arose 
to  this  unusual  emergency  by  issuing  an  ordinance, 
ratified  by  the  council  in  1699,  which  re-established 
all  the  courts.  Owing  to  the  resignation  of  former 
associate  justices  of  the  court  during  Attwood's 

373 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

chief -justiceship,  the  court  now  consisted  of  only 
two  associate  justices,  who,  with  the  chief -justice, 
constituted  a  full  bench. 

FIRST  CHIEF-JUSTICE. 

The  first  chief -justice,  who  was  Joseph  Dudley, 
was  commissioned  to  hold  office  during  the  royal 
pleasure,  and  the  associate  judges  were  commis- 
sioned by  the  governor.  In  1746,  the  chief -justice 
received  his  commission  during  good  behavior.  The 
salary  of  the  chief -justice  was,  in  1698,  made  one 
hundred  thirty  pounds  annually,  prior  to  which 
year  no  compensation  had  been  allowed  for  that 
office.  The  first  assistant  received  one  hundred 
pounds.  In  1702  the  official  salary  was  increased 
to  three  hundred  pounds  per  annum  for  the  chief- 
justice;  to  one  hundred  fifty  pounds  for  the  first 
associate  judge,  and  the  second  associate  judge  was 
the  recipient  of  fifty  pounds  per  annum. 

CHANGES  IN  SALARY. 

The  assembly,  in  1715,  fixed  the  chief -justice's 
salary  at  three  hundred  pounds  per  annum  for  five 
years,  for  holding  circuit  courts.  In  1765  the  Gen- 
eral Assembly  voted  the  chief -justice  three  hundred 
pounds  for  one  year,  and  the  other  justices  two 
hundred  pounds  for  a  like  period.  Instead  of 
salary,  this  was  a  provision  for  the  expenses  of 
going  the  circuit.  In  1774  this  salary  was  raised 
to  five  hundred  pounds  sterhng,  payable  by  the 

374 


CHANGES  IX  SALARY. 

Royal  Exchequer,  and  three  hundred  pounds  m 
New  York  currency  payable  by  the  colony;  the 
associate  judges  were  to  receive  two  hundred 
pounds  in  New  York  currency. 

TERMS  OF  COURT. 

The  terms  of  court  had  been  officially  regulated 
by  an  ordinance  of  Lord  Cornbury,  issued  on  April 
3rd,  1704.  It  was  there  enacted  that  court  be  held 
on  the  first  Tuesdays  in  June  and  September;  and 
the  second  Tuesdays  in  October  and  March  each 
year,  at  the  city  of  New  York,  or  other  designated 
places.  The  official  proclamation  convening  court, 
was  issued  at  least  twenty  days  before  the  term, 
which  was  to  continue  not  longer  than  five  days. 

The  terms  of  court  were  subsequently  appointed 
for  the  third  Tuesdays  in  October,  January  and 
April,  and  the  last  Tuesday  in  July  of  each  year; 
the  April  and  October  terms  were  to  be  held  every 
day  except  Sunday,  from  Thursday  to  Thursday 
of  the  following  week.  On  October  30th,  1730, 
this  ordinance  was  repealed,  and  the  April  and 
October  terms  extended  for  two  days.  This  same 
ordinance  enabled  any  one  or  more  of  the  justices 
to  hold  court  in  any  county  of  the  province,  for  the 
purpose  of  trying  causes  brought  on  for  trial  in  the 
Supreme  Court.  Trial  was  to  be  had  at  the  first 
term  of  court,  and  judgment  rendered  at  any  sub- 
sequent term.  Court  was  to  last  until  its  business 
was  despatched,  and  was  in  no  event  to  exceed  six 
days. 

375 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

Under  this  ordinance  court  was  appointed  for 
Albany,  Dutchess,  Ulster,  and  Orange  counties,  in 
June;  for  Kings,  Queens,  Suffolk,  and  Westches- 
ter counties  in  September,  and  for  Richmond 
county  in  May.  Two  clerks  were  in  charge  of  the 
business  of  court.  The  office  of  the  chief -clerk  was 
located  at  the  city  of  New  York,  and  the  deputy- 
clerk  officiated  on  the  circuits.  All  court  records 
and  processes  were  to  be  transmitted  by  the  deputy- 
clerk  to  the  chief -clerk's  office  for  official  filing. 

CIRCUITS. 

An  act  of  November  27th,  1741,  enabled  justices 
of  the  Supreme  Court  to  hold  Circuit  Courts  under 
commission  from  the  governor,  to  which  commis- 
sion the  official  seal  of  the  colony  was  made  appur- 
tenant. Previously,  special  appointment  by  the 
crown  was  required.  This  authorization,  at  first 
limited  to  six  years,  was  made  perpetual  in  1746. 

In  jNIay,  1746,  justices  of  the  Supreme  Court 
were  empowered  to  commission  persons  at  discre- 
tion, to  take  affidavits  to  be  read  in  any  causes  de- 
pending in  the  Supreme  Court,  as  Masters  of 
Chancery  extraordinary  in  England  were  accus- 
tomed to  do. 

LEGISLATIVE    CHANGES. 

An  official  schedule  of  fees  was  promulgated  by 
the  assembly,  on  May  24th,  1708,  which  regulated 
the  fees  of  all  public  officers.     This  schedule  has 

376 


LEGISLATIVE  CHANGES. 

been  printed  in  full  in  the  principal  part  of  this 
work,  hence  we  will  not  take  up  the  reader's  atten- 
tion further,  by  republishing  it  at  this  time. 

A  jurisdictional  limitation  passed  on  October 
11th,  1709,  made  the  minimum  amount  involved  in 
actions  triable  in  the  Supreme  Court  on  a  case 
brought  on  appeal  from  the  Mayor's  Court, 
wherein  the  title  to  real  property  was  in  question, 
twenty  pounds.  The  growing  spirit  of  litigation 
in  the  colony  resulted  in  the  passage  on  September 
4th,  1714,  of  "An  act  preventing  Multiplicity  of 
Lawsuits,"  and  "An  act  for  the  shortening  of  Law- 
suits and  Regulating  the  Practice  of  Law."  On 
October  29th,  1730,  was  passed  "An  act  for  the  Re- 
lief of  Insolvent  Debtors." 

COURT  UNDER  FIRST  CONSTITUTION. 

The  convention  of  1777  elected  a  council  of 
revision  and  appointment,  to  consist  of  the  gover- 
nor, chancellor,  justices  of  the  Supreme  Court,  and 
members  of  the  senate.  The  regulations  of  this 
council,  which  were  approved,  provided  that  the 
judges  of  the  Supreme  Court  were  to  hold  office 
during  good  behavior,  and  until  the  age  of  sixty 
years,  and  that  all  proceedings  to  which  the  public 
was  a  party,  were  to  be  brought  in  the  name  of  the 
people  of  the  state  of  Ncav  York,  and  not,  as  for- 
merly, in  the  king's  name.  On  June  5th,  1777,  the 
Legislature  appointed  Kingston  as  the  place  for 
holding  court,  owing  to  the  enemy's  presence  in 

377 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

southern  New  York.  There,  on  August  9th,  1777, 
was  held  the  first  term  of  the  Supreme  Court,  for 
what  was  thenceforth  the  state  of  New  York. 

In  1778  the  judges  were  empowered  to  devise  a 
seal,  and  in  April  of  that  year,  the  salary  of  the 
chief -justice  was  fixed  at  three  hundred  pounds, 
(or  seven  hundred  fifty  dollars.  New  York  cur- 
rency) and  the  puisne,  or  associate,  judges  were  to 
receive  two  hundred  pounds,  (or  five  hundred  dol- 
lars. New  York  currency)  ;  and  in  addition  to  their 
travel  fees,  forty  shillings  per  day  for  attendance 
on  the  circuits,  and  Oyer  and  Terminer. 

SESSIONS  OF  COURT. 

An  act  passed  by  the  Legislature  in  1785,  settled 
the  terms  of  the  Supreme  Court  for  the  different 
counties  of  the  state.  Two  terms  were  to  be  held 
in  New  York,  and  two  in  Albany.  The  New  York 
terms  were  to  convene  on  the  third  Tuesdays  of 
January  and  April;  the  last  Tuesday  of  July  and 
third  Tuesday  of  October  were  the  times  set  for  the 
Albany  terms.  The  April  and  October  terms  were 
to  continue  for  three  weeks,  and  the  January  and 
July  terms  for  two.  This  act  directed  that  the 
clerk's  office  be  located  at  New  York,  and  that  of 
the  clerk's  deputy  at  Albany;  the  latter  was  to  be 
appointed  by  the  former.  Court  records  and  papers 
at  Albany  were  to  be  removed  from  Albany,  and 
filed  in  the  New  York  office,  every  six  months. 

Further  legislation,  enacted  on  April  19th,  1786, 

378 


SESSIONS  OF  COURT. 

was  to  the  eifect  that  all  issues  joined  in  the  Su- 
preme Court,  were  triable  in  the  counties  where  the 
lands  were  situated,  or  the  cause  of  action  arose,  or 
the  offence  was  committed,  unless  a  change  of 
venue  were  ordered  by  the  court,  which  practice  was 
resorted  to  in  cases  of  great  difficulty,  or  which 
involved  an  extended  examination.  Actions  merely 
transitory,  and  trials  by  foreign  juries  were  not 
contemplated  by  this  act. 

In  1792  an  additional  associate  judge  was  added 
to  the  bench,  and  in  1794,  the  addition  of  a  fifth 
judge  increased  the  personnel  of  court  to  what  it 
had  been  under  the  original  act  of  1691. 

FIRST  RULES   OF   COURT. 

Rules  of  court  drafted  in  1796,  provided  that  a 
person  who  had  served  seven  years  actual  clerkship 
in  the  office  of  a  practicing  attorney,  might  engage 
in  practice  before  it.  If  the  applicant  for  admission 
to  the  bar  had  spent  the  time  in  classical  studies, 
after  the  age  of  fourteen,  a  period  of  not  more 
than  four  years  was  deducted  from  this  require- 
ment. After  four  years  practice  before  the  court, 
an  attorney  was  eligible  to  practice  as  counsel;  this 
period  of  probation  was  later  reduced,  at  the  No- 
vember term,  1804,  to  three  years. 

On  February  10th,  1797,  the  judges  for  the  April 
term  of  each  year,  were  authorized  to  designate  one 
of  their  number  to  hold  circuit  courts,  one  in  the 
western,  one  in  the  eastern,  one  in  the  middle,  and 

379 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

one  in  the  southern  districts  of  the  state.  In  this 
year  the  judges'  salaries  were  fixed  at  two  thousand 
dollars  per  annum.  On  March  10th,  1797,  an  addi- 
tional clerk  was  authorized,  to  be  appointed  by  the 
judges,  with  an  office  in  Albany,  who  was  to  direct 
from  time  to  time,  the  removal  from  the  clerk's 
office  at  New  York,  to  his  office  in  Albany,  of  any 
record  or  paper  deemed  advisable.  An  additional 
seal,  prepared  by  the  judges,  was  to  be  used  in  the 
office  at  Albany. 

APPOINTMENT  OF  REPORTER  AND  CLERK. 

On  April  7th,  1804,  the  justices  of  the  Supreme 
Court  were  directed  to  a])})oint  a  court  reporter,  at 
a  salary  of  eight  hundred  fifty  dollars  per  annum, 
whose  duty  would  be  to  report  and  publish  all  deci- 
sions of  the  Supreme  Court,  and  of  the  Court  for 
the  Correction  of  Errors.  Discretion  was  given  the 
judges,  in  April,  1807,  to  appoint  a  clerk  and 
establish  an  additional  clerk's  office  for  Oneida 
County,  and  a  clerk  was  accordingly  appointed  for 
that  county,  with  an  office  at  Utica. 

The  clerks'  duties  required  them  to  deliver  to 
each  other,  on  or  before  the  last  day  of  every  term, 
at  the  place  where  court  was  in  session,  a  transcript 
of  the  docket  of  all  judgments  that  had  been 
docketed  in  their  respective  offices  during  the  pre- 
ceding terms  and  vacation.  After  April  30th,  1811, 
the  terms  of  court  were  to  be  held  on  the  third  Mon- 
day in  October,  and  the  first  Mondays  in  January, 

380 


APPOINTMENT  OF  REPORTER  AND  CI.ERK. 

May  and  August,  and  continued  with  the  exception 
of  Sunday,  until  Saturday  of  the  following  week. 
The  judges'  salaries  were  further  increased,  on 
June  19th,  1812,  to  three  thousand  dollars  for  three 
years.  The  salary  was  again  increased  in  1816  to 
four  thousand  five  hundred  dollars  without  a  lim- 
itation as  to  time;  in  1820  the  salary  was  inde- 
finitely reduced  to  three  thousand  five  hundred 
dollars,  and  in  1821  further  indefinitely  reduced  to 
three  thousand  dollars. 

CONSTITUTIONAL  CHANGES^   1821. 

The  constitution  of  1821  made  no  alteration  as 
to  the  manner  of  selecting  justices,  and  it  provided 
for  their  appointment  b}^  the  governor,  with  the 
consent  of  the  senate.  By  virtue  of  a  constitutional 
enactment  of  1821,  the  judges  of  the  Supreme 
Court  were  to  assemble  four  times  a  year  for  the 
purpose  of  reviewing  their  decisions,  and  deter- 
mining questions  of  law.  To  each  judge  was  given 
authority  to  hold  circuit  courts  in  the  same  manner 
as  circuit  judges,  and  they  were  also  empowered  to 
preside  in  Oyer  and  Terminer.  All  court  process 
was,  by  law,  to  be  in  the  name  of  the  chief -justice, 
or  in  lieu  of  him,  in  the  name  of  any  justice  of  the 
court. 

To  the  court  was  delegated  the  power  to  amend 
practice  in  cases  not  covered  by  statute;  to  revise 
its  rules  every  seven  years;  to  ultimately  abolish 
fictitious  and  unnecessary  process  and  proceedings, 

381 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

expedite  decisions  of  causes,  and  remedy  abuses  and 
imperfections  in  practice. 

Under  the  constitution  the  office  of  judge  was 
appointive  and  not  elective.  The  governor,  by  and 
with  the  advice  and  consent  of  the  senate,  filled  the 
office  by  appointment  during  good  behavior,  or 
until  the  age  of  sixty  years.  A  joint  resolution  of 
the  Legislature,  concurred  in  by  a  two-thirds  ma- 
jority of  the  senate  and  assembly,  was  necessary  to 
procure  the  removal  of  a  judge  from  the  bench,  if 
guilty  of  malfeasance  in  office,  or  impeached  for 
other  cause. 

While  in  office,  judges  were  disqualified  from 
holding  any  other  office ;  were  exempted  from  mili- 
tary service;  were  prohibited  from  accepting  fees 
or  perquisites;  and  were  not  to  participate  in  any 
case  wherein  they  were  in  any  manner  interested. 
A  further  disqualification  excluded  them  from 
being  a  party  to  the  decision  of  any  case  passed  on 
by  them  in  other  courts,  and  enjoined  them  from 
practicing  as  attorneys  and  counselors,  or  being 
associated  with,  or  partners  of,  those  who  had  pre- 
viously appeared  in  such  case. 

The  number  of  judges  was  reduced  to  three,  and 
from  1823  their  annual  salary  was  made  two  thou- 
sand dollars,  which,  in  1835,  was  increased  to  two 
thousand  five  hundred  dollars,  and  in  1839  made 
three  thousand  dollars.  An  act  of  1835  abolished 
the  allowance  to  judges  as  members  of  the  Court  of 
Errors,  for  travel  and  attendance. 

382 


CHANGES  IN  CLERKS    OFFICES— ELECTIVE  JUDGES. 


CHANGE  IN  TERMS. 

By  virtue  of  an  act  passed  in  1823,  terms  of  court 
were  set  for  the  third  Mondays  of  February  and 
October,  and  for  the  first  Monday  of  May  and 
August.  An  August  term  was  appointed  for  the 
city  of  Utica,  and  terms  in  February  and  October 
were  appointed  for  Albany. 

The  terms  of  court  lasted  from  two  to  four 
weeks,  as  the  amount  of  business  required.  Terms 
of  court  were  subsequently  set  for  the  first  Mon- 
days of  January,  May  and  July,  and  the  third 
Monday  of  October.  The  terms  appointed  for 
January  and  October  were  to  be  held  at  the  Capitol 
in  Albany,  the  May  term  at  the  City  Hall,  New 
York,  and  the  July  term  at  the  Academy  in  Utica. 

The  sessions  of  court  were  to  continue  for  five 
weeks.  During  the  last  week,  unless  by  consent  of 
parties,  no  argument  was  heard;  after  the  second 
Saturday,  no  process  was  issued  or  returned,  except 
a  subpoena,  attachment,  or  habeas  corpus.  The 
October  term  was  changed  in  1841,  from  Albany  to 
Rochester,  and  a  justice  required  to  sit  at  the  Capi- 
tol in  Albany,  to  try  such  non-enumerated  cases  as 
should  arise,  except  those  for  hearing  at  term  time. 

CHANGES  IN  CLERKS^  OFFICES ELECTIVE  JUDGES. 

Clerks'  offices  were  continued  at  New  York,  Al- 
bany, and  Utica,  and  in  1829,  one  was  established 
at  Canandaigua,  which  in  1831,  was  removed  to 

383 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

Geneva,  and  in  1841  to  Rochester.  To  each  clerk 
was  alloted  an  official  seal  of  office,  and  he  was 
appointed  by  the  justices  of  the  court  for  three 
years,  unless  sooner  removed,  and  allowed  to  select 
and  appoint  his  deputy.  Upon  an  order  of  a  jus- 
tice, court  papers  might  be  transferred  from  one 
office  to  another,  l^y  the  concurrence  of  the 
lieutenant-governor,  chancellor,  and  chief -justice,  a 
reporter  was  appointed  for  the  Supreme  Court,  and 
the  Court  of  Errors,  of  the  degree  of  counselor  at 
law  or  in  chancery,  of  at  least  five  years'  standing. 
Among  the  constitutional  amendments  of  1869, 
was  one  which  recommended  the  submission  of  the 
election  of  judges  to  popular  vote.  This  was  tested 
in  1873,  with  a  popular  verdict  in  favor  of  the 
election,  rather  than  the  apnointment,  of  judges. 

NUMBER  OF  JUDGES CONSTITUTIONAL  CHANGES. 

Originally  there  were  three  justices  of  the  Su- 
preme Court.  A  chief -justice  and  two  associate 
justices  were  authorized  by  article  XXIV  of  the 
constitution  of  1777,  "  To  hold  their  offices  during 
good  behavior  or  until  they  shall  respectively^  attain 
the  age  of  sixty  years."  The  constitution  of  1821 
in  no  wise  affected  the  number  or  tenure  of  office  of 
the  Supreme  Court  judges. 

The  constitution  of  1846,  by  article  VI,  section 
4,  divided  the  state  into  eight  judicial  districts  with 
four  justices  to  each  district;  by  article  VI,  section 
6,  of  the  constitutional  amendments  of  1869,  five 

384 


NUMBER  OF  JUDGES — CONSTITUTIONAL  CHANGES. 

justices  were  assigned  to  the  city  of  New  York. 
These  provisions  increased  the  number  of  judges 
to  thirty-three. 

The  official  tenure  of  office  for  Supreme  Court 
judges,  under  the  constitution  of  1846,  article  VI, 
section  4,  was  made  ten  years.  The  original  juris- 
diction of  the  Supreme  Court  in  civil  and  criminal 
matters,  was  co-extensive  with  that  of  Kings  Bench 
and  Common  Pleas  in  England.  From  its  original 
jurisdictional  limitation  of  twenty  pounds  in  civil 
cases,  it  has  increased  to  many  times  that  amount. 

Under  article  V,  section  5,  of  the  constitution  of 
1821,  Circuit  Courts  were  provided  for  each  circuit; 
for  each  of  these  circuits,  which  were  not  less  than 
four,  nor  more  than  eight,  a  circuit  judge  with  like 
authority  as  Supreme  Court  justices,  was  alloted. 

The  amendments  of  1869  authorized  the  holding 
of  general  and  special  terms  of  Supreme  Court, 
and  empowered  the  justices  of  the  Supreme  Court 
to  hold  special  terms.  Circuit  Courts,  and  Courts 
of  Oyer  and  Terminer.  The  Courts  of  Oyer  and 
Terminer  and  Circuit  Courts  were  abolished  by 
the  constitution  of  1894,  and  their  jurisdiction  con- 
ferred upon  the  Supreme  Court. 


385 


CHAPTER   XL. 


CIRCUIT  COURTS  AND   COURTS  OF 
OYER  AND  TERMINER. 

Supreme  Court  Circuits — Legislative  Enact- 
ments— Constitution  of  1821 — Jurisdiction 
OF  Court — Equity  Jurisdiction. 

SUPREME  COURT  CIRCUITS. 

Prior  to  the  Revolution,  the  Supreme  Court 
judges  were  wont  to  go  the  circuit  of  the  prov- 
ince of  New  York,  and  commissions  of  Oyer  and 
Terminer  were  held  regularly  and  specially. 

Circuit  Courts  were  re-established  by  an  act  of 
April  19th,  1786.  One  or  more  of  the  Supreme 
Court  justices  were  directed  to  hold  Circuit  Courts 
during  vacation,  and  oftener,  if  necessary,  in  each 
county,  for  the  trial  of  all  issues  triable  in  the 
respective  counties.  The  records  of  trial  were  to  be 
returned  to  the  Supreme  Court,  and  final  judgment 
rendered  according  to  law.  In  the  justices  was 
vested  power,  on  the  circuit,  in  assizes  of  every 
nature. 

In  1789  the  Legislature  enacted  that  all  issues 
triable  by  jury,  might  be  tried  at  circuit,  or  at  the 
bar  of  the  Supreme  Court,  without  an  order  to  that 

387 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

effect.  In  1797  an  order  was  rendered  mandatory. 
These  courts  were  abolished  in  1796,  and  their 
duties  delegated  to  the  County  Courts. 

LEGISLATIVE  ENACTMENTS. 

On  February  10th,  1797,  the  Legislature  passed 
an  act  to  the  effect  that  the  Supreme  Court  judges 
designate  one  of  their  number  to  hold  Circuit 
Courts,  one  in  the  western,  one  in  the  eastern,  one 
in  the  middle,  and  one  in  the  southern  districts. 

On  February  22nd,  1788,  it  was  enacted  that  the 
justices  also  hold  Courts  of  Oyer  and  Terminer  at 
the  same  time  as  Circuit  Courts,  to  continue  until 
the  completion  of  all  business  before  it.  Two  or 
more  of  the  judges  or  assistant  judges  of  the  Court 
of  Common  Pleas  were  to  be  associated  with  the 
justice  of  Oyer  and  Terminer. 

On  the  governor  was  conferred  power  to  convene 
a  Court  of  Oyer  and  Terminer  whenever,  in  his 
opinion,  it  was  deemed  advisable.  In  the  commis- 
sion convening  court,  the  governor  and  council 
named  the  justice  of  the  Supreme  Court  who  was 
to  preside  at  the  .circuit.  Once  in  the  year  the 
records  were  sent  to  exchequer  for  final  record.  The 
office  of  the  clerk  of  Oyer  and  Terminer  was  abol- 
ished February  12th,  1796,  and  its  duties  devolved 
upon  the  clerk  of  the  County  Courts. 

CONSTITUTION   OF    1821. 

Article  V,  section  5  of  the  constitution  of  1821, 

388 


CONSTITUTION   OF   1821. 

divided  the  state  into  not  less  than  four,  nor  more 
than  eight  circuits,  subject  to  legislative  regulation. 
A  judge  was  appointed  for  each  circuit,  with  the 
same  powers,  and  under  the  same  terms  and  condi- 
tions as  Supreme  Court  justices.  Four  terms  of 
Circuit  Court  were  set  for  New  York  county;  in 
all  other  counties  of  the  state  the  number  of  terms 
was  limited  to  two. 

It  was  discretionary  with  each  judge  to  appoint 
the  time  and  place  of  holding  court  in  his  circuit, 
for  the  year  next  ensuing,  to  continue  as  long  as  the 
judge  should  decide.  The  court's  jurisdiction 
embraced  the  trial  of  all  issues,  and  the  taking  of  all 
depositions  had  before  it,  by  default  or  otherwise; 
and  the  recording  of  all  non-suits  and  defaults.  It 
was  the  duty  of  the  court  to  return  all  its  proceed- 
ings to  the  Supreme  Court,  or  the  court  directing 
same. 

Each  judge  of  the  Supreme  Court,  and  circuit 
judges,  were  authorized  to  hold  any  Circuit  Court 
for  the  whole  or  any  part  of  its  sessions.  The  clerks 
of  the  several  counties  were  also  clerks  of  the  Cir- 
cuit Courts,  except  in  New  York,  where  the  clerk 
of  the  Supreme  Court  was  also  clerk  of  the  Circuit 
Court. 

The  constitution  of  1821  organized  a  Court  of 
Oyer  and  Terminer  and  General  Jail  Delivery.  In 
each  county,  these  courts  were  to  be  held  twice 
annually,  except  in  New  York,  where  provision  was 
made  for  four  terms. 

389 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

Circuit  judges  were  to  preside  over  such  courts^ 
and  they  usually  appointed  times  and  localities  for 
holding  same,  coincident  with  Circuit  Courts.  In 
the  city  and  county  of  New  York,  one  or  more  of 
the  Supreme  Court  judges,  or  circuit  judges,  or 
first  judge  of  the  Court  of  Common  Pleas,  together 
with  the  mayor,  recorder,  and  aldermen,  or  any  two 
of  them,  presided. 

In  the  counties  of  Albany,  Columbia,  and  Rens- 
selaer, the  mayor,  recorder  and  aldermen,  or  any 
two  of  them,  might  sit  and  act  in  Oyer  and 
Terminer,  with,  or  instead  of,  county  judges. 

JURISDICTION  OF  COURT. 

The  court  had  power  by  inquest  of  the  grand 
jury  of  the  county,  to  enquire  into  all  crimes  and 
misdemeanors  within  the  county ;  to  hear  and  deter- 
mine crimes  and  misdemeanors,  and  deliver  the  jail 
to  all  persons  according  to  law.  It  was  the  duty 
of  the  court  to  try  all  indictments  found  by  the 
grand  jury,  and  triable  at  General  Sessions  of  the 
Peace,  and  which  had  been  sent  by  order  of  the 
latter  court  to  Oyer  and  Terminer,  or  which  had 
been  removed  there. 

Commissions  of  Oyer  and  Terminer  might  be 
designated  by  the  governor,  with  the  consent  of  the 
senate,  as  often  as  occasion  demanded.  In  the  com- 
mission convening  court,  the  time  and  place  for 
holding  court  was  named,  and  the  same  filed  with 
the  secretary  of  state,  and  a  copy  transmitted  to 

390 


JURISDICTION  or  COURT. 

the  district-attorney  of  the  county  for  which  such 
commission  was  issued. 

Should  the  number  of  prisoners  in  any  county 
jail,  or  the  importance  of  the  offence  charged 
render  it  necessary,  a  special  Court  of  Oyer  and 
Terminer  might  be  called  by  the  judge  of  the  cir- 
cuit in  which  the  county  was  situated,  upon  a 
warrant  bearing  his  official  hand  and  seal. 

Such  warrant  was  transmitted  to  the  district- 
attorney,  who,  at  least  twenty  days  before  holding 
said  court,  was  required  to  issue  a  precept  to  the 
sheriff  of  the  county,  requiring  him  to  summon 
grand  and  petit  jurors;  bring  before  court  all 
persons  confined  in  the  county  jail,  and  publish  a 
proclamation,  notifying  all  necessary  parties  to 
appear  at  said  court;  and  requiring  all  officers 
to  return  their  recognizances,  inquisitions,  and  ex- 
aminations to  court  at  its  opening. 

Each  Court  of  Oyer  and  Terminer  possessed  a 
seal,  and  all  processes  were  tested  in  the  name  of  the 
circuit  judge,  or  in  his  absence,  in  the  name  of  the 
chief -justice  of  the  Supreme  Court.  Writs  could 
be  issued  into  any  county  of  the  state.  In  New 
York  county,  the  clerk  of  General  Sessions  offi- 
ciated; in  all  other  counties  the  county  clerk  was 
clerk  of  the  court. 

EQUITY    JURISDICTION. 

All  matters  in  equity  lay  within  the  jurisdiction 
of  the  Circuit  Court.    The  clerk  of  this  court  acted 

391 


•  THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

as  court  register,  and  was  furnished  with  a  seal  for 
all  equity  proceedings.  The  salary  of  circuit  judges 
in  1827  was  one  thousand  two  hundred  fifty  dollars, 
and  by  1835  had  increased  to  one  thousand  six  hun- 
dred dollars.  Attorneys  and  counselors  were 
admitted  to  practice  on  the  same  terms  as  prescribed 
for  the  Supreme  Court,  by  Benson,  in  1796. 


392 


CHAPTER  XLI. 

COURT  FOR  THE  TRIAL  OF  IMPEACH 

MENTS  AND  CORRECTION  OF 

ERRORS. 


Only  New  State  Court — Impeachments — 
Correction  of  Errors  —  Constitutional 
Changes^  1821. 

ONLY  new  state  COURT. 

The  above  court  was  the  only  one  created  under 
and  by  virtue  of  the  constitution  of  1777.  The 
thirty-second  section  of  the  constitution  provided 
that  such  a  court  be  estabhshed  under  regulations 
to  be  imposed  by  the  Legislature,  and  that  it  should 
consist  of  the  president  of  the  senate,  pro  tempore, 
the  senators,  chancellor,  and  judges  of  the  Supreme 
Court,  or  a  majority  of  them. 

The  regulations  governing  impeachment  pro- 
ceedings were  included  in  sections  33  and  34, 
wherein  and  whereby  the  assembly  was  vested  with 
power  of  impeaching  for  malfeasance  or  incom- 
petence in  office,  all  state  officials,  upon  a  concur- 
rence of  two-thirds  of  the  members  present. 

IMPEACHMENTS. 

On  the  trial  of  impeachments,  a  prescribed  oath, 

393 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

similar  in  form  to  a  juror's  oath,  was  administered 
to  each  member  of  the  court,  whereby  he  engaged 
himself  to  truly  and  impartially  try  and  determine 
the  charge  under  consideration,  according  to  the 
facts  and  evidence;  validity  could  be  given  to  a 
judgment  only  upon  the  assent  of  two-thirds  of  the 
members  who  constituted  the  Court  of  Impeach- 
ment. The  effect  of  a  judgment  of  impeachment 
was  to  remove  the  offender  from  office,  and  debar 
him  from  any  position  of  honor,  trust,  or  emolu- 
ment under  the  state.  The  convicted  party  was  also 
liable  to  indictment,  trial,  and  punishment  accord- 
ing to  the  criminal  and  civil  law. 

On  the  trial  of  an  impeachment  or  indictment, 
the  defendant  was  allowed  counsel.  Upon  the 
prosecution  of  an  impeachment  wherein  the  chan- 
cellor, or  any  of  the  judges  of  the  Supreme  Court 
was  defendant,  the  official  on  trial  was  suspended 
from  exercising  the  functions  of  office,  until 
acquitted. 

CORRECTION  OF  ERRORS. 

In  the  correction  of  errors,  it  was  provided  that 
on  appeal  from  a  decree  in  equity,  the  chancellor 
was  to  inform  the  appellate  court  of  the  grounds 
for  his  decision,  but  was  deprived  of  a  decisive  voice 
at  the  trial,  or  in  the  final  decision. 

On  November  23rd,  1784,  the  Legislature,  pur- 
suant to  these  articles  of  the  constitution,  proceeded 
to  organize  the  court.     Sessions  were  authorized 

394 


CORRECTION   OF  ERRORS. 

during  the  meetings  of  the  Legislature,  at  times 
and  places  appointed.  A  seal  was  to  be  prepared, 
and  a  clerk  appointed.  The  method  of  trying  im- 
peachments was  also  prescribed. 

Appeals  to  this  court  were  permissible  from  the 
Court  of  Chancery,  Supreme  Court,  Court  of  Pro- 
bates, and  Admiralty  Court,  except  in  cases  of 
prize  captures.  Fifteen  days  were  allowed  within 
which  to  bring  appeals  from  probate  or  admiralty, 
and  decretal  orders  in  chancery.  Appeals  from 
final  decrees  in  chancery,  and  writs  of  error  upon 
Supreme  Court  judgments,  were  to  be  brought 
within  five  years  after  the  rendition  of  final  judg- 
ment or  decree.  The  president  of  the  senate  pre- 
sided, and  cast  the  decisive  vote  in  case  of  a  tie. 

In  civil  cases,  and  in  all  but  criminal  capital 
cases,  writs  of  error  were  of  right,  and  issued  of 
course;  in  capital  cases  they  were  writs  of  grace. 
Writs  were  issued  by  the  chancellor  in  all  cases;  in 
capital  cases  they  were  issued  upon  motion  or  peti- 
tion, with  notice  to  the  attorney-general  or  state 
prosecutor. 

CONSTITUTIONAL   CHANGES^    1821. 

The  only  change  wrought  in  the  procedure  of 
this  court  under  the  constitution  of  1821,  was  one 
that  made  a  majority  of  the  members  of  assembly 
present  at  the  session,  sufficient  to  impeach.  The 
constitution  of  1846  terminated  the  existence  of 
this  court,  and  transferred  its  powers  in  cases  of 

395 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

impeachment,  to  a  new  court  composed  of  the  presi- 
dent of  the  senate,  the  senators,  or  a  majority  of 
them,  and  the  judges  of  the  Court  of  Appeals,  or  a 
majority  of  them.  Its  appellate  jurisdiction  was 
vested  in  the  Court  of  Appeals. 


396 


CHAPTER  XLII. 

COURT  OF  COMMON  PLEAS  FOR  THE 
CITY  AND  COUNTY  OF  NEW  YORK. 


Originally  Mayor^s  Court — City  Officials  in 
County  Court — Appointment  of  Associate 
Judge — Election  of  Judges — Jurisdiction  of 
Court— Appeals — Appointment  of  Clerk — 
Abolition  of  Court. 

originally  mayor^s  court. 

After  a  perusal  of  the  chapter  on  the  historical 
features  of  the  Mayor's  Court,  its  importance  and 
extensive  jurisdiction  must  be  apparent  to  the 
reader. 

In  1821,  after  the  mayor  no  longer  continued  to 
discharge  the  functions  of  a  judge  of  this  court, 
its  title  lost  its  significance  and  was  changed  to  that 
of  the  "  Court  of  Coramon  Pleas  for  the  City  and 
County  of  New  York." 

The  act  which  wrought  this  change  made  provi- 
sion for  the  organization  and  equipment  of  the 
court.  A  first  judge  was  to  be  appointed,  who 
was  to  hold  office  during  good  behavior  or  until 
reaching  the  age  of  retirement,  which  was  limited 
to  sixty  years.     In  the  following  year  an  act  was 

397 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

passed  which  reduced  the  term  of  office  to  five  years. 
By  this  same  act,  the  appointive  power  was  vested 
in  the  governor,  and  the  mayor,  recorder,  and  alder- 
men were  authorized  to  sit  on  the  bench  with  the 
judge;  but  the  first  judge  was  commissioned  to  hold 
court  in  person  and  without  them  if  necessary,  and 
it  was  made  his  particular  duty  to  hold  such  court. 

CITY   OFFICIALS   IN    COUNTY   COURT. 

Neither  the  mayor,  recorder,  nor  aldermen  ever 
availed  themselves  of  the  above  right,  or  partici- 
pated in  the  proceedings  of  the  court,  except  when 
all  the  judges  were  convened  in  a  County  Court. 
Thus  organized,  consisting  of  the  first  judge,  the 
mayor,  recorder,  and  all  the  aldermen,  this  court 
was  occasionally  convened  for  the  impeachment 
and  trial  of  those  who  were  recreant  in  their  duties 
to  the  municipal  government.  On  such  occasions 
the  first  judge  acted  as  the  presiding  officer.  This 
branch  of  the  court  was  finally  abolished  by  an  act 
in  1826. 

APPOINTMENT  OF  ASSOCIATE  JUDGE. 

In  1834  an  associate  judge  was  appointed  for 
the  Court  of  Common  Pleas,  and  vested  with  all 
the  powers  of  the  first  judge.  A  further  addition 
was  made  to  its  number  in  1838,  in  the  person  of 
another  associate  judge  vested  with  the  functions 
and  powers  of  the  other  judges.  As  thus  consti- 
tuted, consisting  of  a  first  judge  and  two  associate 

398 


JURISDICTION  OF  COURT. 

judges,  the  Court  of  Common  Pleas  continued  to 
dispense  justice  until  the  adoption  of  the  constitu- 
tion of  1846.  The  constitution  of  that  year,  by 
special  exceptions,  eliminated  the  Court  of  Com- 
mon Pleas  from  the  general  judicial  re-organiza- 
tion of  the  state. 

ELECTION  OF  JUDGES. 

In  the  following  year,  an  act  of  the  Legislature 
was  passed  (Laws  of  1847 — 79),  which  terminated 
the  existing  terms  of  office  of  the  judges,  on  Janu- 
ary 17th  next  ensuing,  and  provided  for  a  popular 
election  of  judges  for  each  of  the  courts  at  the 
next  general  election.  The  terms  of  office  w^ere 
respectively  classified  in  terms  of  two,  four,  and  six 
years,  to  be  determined  by  lot.  In  June  of  that 
year  the  judges  of  the  Court  of  Conmion  Pleas 
were  elected  for  terms  of  two,  four,  and  six  years. 

JURISDICTION  OF  COURT. 

The  jurisdiction  of  the  Court  of  Common  Pleas 
was  unlimited.  By  the  judiciary  act  of  1847,  by 
the  code  of  1848,  and  the  amendments  of  1849, 
1851,  and  1853,  unlimited  jurisdiction  in  law  and 
equity  was  conferred  on  this  court  if  the  defendant 
were  a  resident  of  the  city,  and  personally  served 
with  process  therein.  If  one,  two,  or  more,  defend- 
ants jointly  liable  on  contract  resided  within  the 
city,  or  were  personally  served  within  the  city  lim- 
its, the  court  acquired  jurisdiction. 

399 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

The  court's  jurisdiction  extended  to  corpora- 
tions, organized  under  the  laws  of  the  state,  which 
transacted  their  general  business,  or  maintained  an 
office  for  the  transaction  of  business,  in  the  city  of 
New  York.  The  corporate  jurisdiction  of  the 
court  included  cognizance  of  actions  against  for- 
eign corporations  upon  any  cause  of  action  arising 
in  the  state,  or  for  the  recovery  of  any  debt  or  dam- 
ages, liquidated  or  not,  arising  upon  a  contract 
made,  executed,  or  delivered  within  the  state. 

The  procedure  of  court  was  specifically  regu- 
lated by  provisions  of  the  code,  which  required  cer- 
tain actions  to  be  tried  in  the  county  wherein  the 
subject  matter  of  the  action  was  situated,  or  the 
cause  of  action  arose.  In  such  cases  the  court  ac- 
quired jurisdiction,  irrespective  of  the  parties'  resi- 
dence, or  the  personal  service  of  the  process. 
"  Actions  for  the  recovery  of  real  property,  of  an 
estate  or  interest  therein,  for  the  determination  in 
any  form  of  such  right  or  interest,  for  injuries,  to 
real  property,  for  the  protection  of  real  property, 
for  the  foreclosure  of  mortgage  on  real  property, 
for  the  recovery  of  personal  property  distrained, 
for  the  recover}^  of  a  penalty  or  forfeiture  imposed 
by  statute,  except  where  imposed  for  an  offence 
committed  in  a  lake,  river,  or  other  stream  of  water, 
and  opposite  to  the  place  where  the  offence  was 
committed." 

"  And  actions  against  a  public  officer,  or  per- 
son specially  delegated  to  perform  his  duties,  or 

400 


JURISDICTION  OF  COURT. 

for  any  act  done  by  him  in  virtue  of  his  office,  or 
against  a  person  who,  by  his  command  or  in  his  aid, 
shall  do  anything  touching  the  duties  of  such 
office;  "  and  by  the  judiciary  act,  and  under  a  spe- 
cial act  passed  in  1854  (Laws  of  1854 — 464) ,  "  the 
court  also  possessed  jurisdiction  in  special  proceed- 
ings for  the  disposition  of  real  estate  of  infants, 
where  such  real  estate  is  situated  in  New  York 
City;  the  care  and  custody  of  the  persons  and  es- 
tates of  lunatics,  persons  of  unsound  mind,  or 
habitual  drunkards,  residing  within  the  city;  the 
mortgage  or  sale  of  the  real  estate  of  religious  cor- 
porations, and  the  adjustment  of  dower  in  lands 
within  the  city." 

APPEALS. 

"Any  appeal  from  its  judgment  or  determina- 
tion, except  in  an  action  originally  commenced  in 
the  Marine  or  the  Justices'  Courts,  lies  directly  to 
the  court  of  last  resort — the  Court  of  Appeals." 
The  code  allows  an  appeal  from  the  judgment  of 
the  Marine  or  the  Justices'  Courts  of  the  city,  to 
the  Court  of  Common  Pleas,  and  on  such  an  appeal 
its  decision  is  final. 

"  It  also  has  exclusive  jurisdiction  upon  liens 
against  real  estate  by  virtue  of  an  act  passed  in 
1851,  except  that  when  the  lien  is  docketed  for  a 
sum  not  exceeding  one  hundred  dollars,  the  pro- 
ceedings may  be  commenced  in  the  Marine  Court, 
or  in  the  Justices'  Court  of  the  district  where  the 
dwelling    is    situated."       (Laws    of    1851 — 953.) 

401 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

Among  the  powers  of  this  court  was  that  of  nat- 
uraHzing  and  granting  citizenship  papers  to  those 
of  foreign  birth  who  had  comphed  with  the  United 
States  NaturaHzation  Laws. 

APPOINTMENT    OF    CLERK. 

An  act  of  1854  ordained  the  appointment  of  a 
clerk  of  the  Court  of  Common  Pleas,  an  office 
which  heretofore  had  been  filled  by  the  county 
clerk,  who  acted  in  the  dual  capacity  of  clerk  of  the 
Supreme  Court,  and  that  of  the  Court  of  Common 
Pleas.  The  act  consolidated  the  court's  jurisdiction 
by  re-affirming  its  powers  in  remitting  fines  and 
recognizances,  in  creating  and  discharging  dockets 
of  liens  and  judgments  entered  upon  recognizances, 
and  in  effect  affirmed  all  its  previous  powers;  it 
conferred  upon  it  all  the  powers  then  and  there- 
after to  be  vested  in  the  county  courts,  and  gener- 
ally confirmed  its  powers  as  a  court  of  original  and 
general  jurisdiction,  to  the  same  extent  as  they  were 
had  and  exercised  before  the  adoption  of  the  consti- 
tution of  1846.     (Laws  of  1854—464.) 

ABOLITION   OF   COURT. 

The  Court  of  Common  Pleas  was  officially  abol- 
ished by  the  constitution  of  1895,  in  the  following 
form  and  effect:  "  The  Superior  Court  of  the  city 
of  New  York,  the  Court  of  Common  Pleas  for  the 
city  and  county  of  New  York,  the  Superior  Court 

402 


ABOLITION   OF  COURT. 

of  Buffalo,  and  the  City  Court  of  Brooklyn,  are 
abolished  from  and  after  the  first  day  of  January, 
1896,  and  thereupon  the  seals,  records,  papers,  and 
documents  of  or  belonging  to  such  courts  shall  be 
deposited  in  the  offices  of  the  clerks  of  the  several 
counties  in  which  said  courts  now  exist;  and  all 
actions  and  proceedings  then  pending  in  such 
courts  shall  be  transferred  to  the  Supreme  Court 
for  hearing  and  determination." 


403 


CHAPTER   XLIII 


JUSTICES  OF  THE  PEACE-  MARINE 
COURT. 


Jurisdiction  of  Justices  in  Colony — Powers  of 
Justices  in  State^Procedure — Fees — Jus- 
tices^ Court  for  City — ^Iarine  Court — As- 
sisTi\j^T- Justices^  Courts  —  Constitutional 
Changes^  1846 — Constitution  of  1895 — Jus- 
tices^ Courts  Abolished. 

jurisdiction  of  justices  in  colony. 

From  the  earliest  period  in  the  history  of  the 
colony  of  New  York,  the  Courts  of  Justices  of  the 
Peace  were  a  part  of  the  judicial  system.  Justices 
of  the  peace  held  Town  Courts  and  were  members 
of  all  the  other  tribunals  of  the  colony.  Subse- 
quently to  the  Revolutionary  War,  different  acts 
of  the  state  Legislature  continued  these  courts. 

POWERS  OF  JUSTICES  IN  STATE. 

Chapter  44,  of  the  Laws  of  1780,  passed  Febru- 
ary 26th  of  that  year,  vested  jurisdiction  of  one 
hundred  pounds  or  less  in  justices  of  the  peace, 
mayors,  recorders,  and  aldermen.     Their  jurisdic- 

405 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

tion  likewise  embraced  all  actions,  as  cases  of  debt, 
slander,  trespass,  replevin,  or  for  damages,  if  the 
amount  involved  were  less  than  one  hundred 
pounds.  These  matters  were  tried  before  one  of 
the  justices  of  the  peace  of  any  of  the  counties,  or 
the  mayor,  recorder,  or  aldermen  of  the  cities  of 
New  York  and  Albany  and  the  Borough  of  West- 
chester. 

PROCEDURE. 

The  procedure  in  vogue  in  Justices'  Courts  re- 
quired the  defendant  to  appear  forthwith,  in  a  case 
of  service  by  warrant,  but  if  service  were  by  a  sum- 
mons, he  was  given  not  less  than  six  and  not  more 
than  twelve  days  after  service  within  which  to  ap- 
pear. Four  days  after  trial  were  allowed  for  final 
judgment.  Every  magistrate  possessed  jurisdic- 
tion, in  case  the  summoning  magistrate  were  ab- 
sent on  the  return  day  of  the  process.  This 
jurisdiction  was  extended  to  each  magistrate  of  the 
same  city,  town,  borough,  or  district.  Freeholders 
and  those  with  families  could  be  proceeded  against 
by  summons  only,  which  had  to  be  served  person- 
ally, or  in  lieu  thereof,  and  in  case  of  inability  to 
make  such  service,  the  process  might  be  left  with  a 
member  of  the  defendant's  family,  of  suitable  age 
and  discretion.  In  this  event,  information  of  the 
contents  and  purport  of  the  process  was  to  be  given 
to  the  person  so  served,  at  least  six  days  before  the 
time  of  appearance  mentioned  in  the  summons. 

406 


PROCEDURE. 

The  officer  making  service  was  required  to  endorse 
upon  it  the  manner  of  execution. 

If  no  good  and  sufficient  cause  for  defendant's 
failure  to  appear  were  shown,  the  court  proceeded 
with  the  trial  as  if  the  defendant  had  been  person- 
ally served ;  if  a  copy  of  the  summons  had  been  left 
at  defendant's  residence,  a  warrant  for  his  immedi- 
ate appearance  was  issued. 

Should  plaintiff  make  affidavit  to  the  court  that 
he  was  likely  to  lose  his  demand  by  issue  of  a  sum- 
mons, a  warrant  was  generally  issued  although  de- 
fendant were  a  freeholder.  Upon  application,  and 
sufficient  security,  an  adjournment  of  trial  was 
granted.  To  either  party  was  accorded  the  right 
to  demand  a  jury  of  six  freeholders.  The  follow- 
ing form  of  oath  was  administered  to  jurors: 
"  You  shall  well  and  truly  try  this  matter  in  differ- 
ence between  A.  B.,  plaintiff,  and  CD.,  defendant, 
and  a  true  verdict  give  according  to  the  evidence. 
So  Help  You  God."  To  witnesses  was  tendered 
the  familiar  form  of  oath,  still  prevalent:  "  The 
evidence  which  you  shall  give  in  this  matter  in  dif- 
ference between  A.  B.,  plaintiff,  and  C.  D.,  de- 
fendant, shall  be  the  truth,  the  whole  truth,  and 
nothing  but  the  truth.  So  Help  You  God." 

When  the  evidence  had  been  fulty  submitted  and 
the  case  closed,  the  jury  retired  to  some  convenient 
place  and  agreed  upon  their  verdict,  which  was 
announced  to  the  court,  who  rendered  judgment 
accordingly. 

407 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

Should  a  juror  fail  to  attend  the  term  of  court 
for  which  he  was  summoned,  he  was  subjected  to 
a  fine  of  not  less  than  ten  pounds,  nor  more  than 
forty  pounds.  The  fines  thus  collected  were  turned 
over  to  the  local  overseers  for  the  relief  of  the  poor. 

Should  the  plaintiff  be  non-suited,  or  discontinue 
or  withdraw  his  action  without  the  defendant's  con- 
sent, the  former  was  liable  for  costs,  or  should 
defendant  prevail  in  the  trial,  and  establish  a 
counterclaim,  judgment  was  given  against  plaintiff 
for  the  amount  of  the  counterclaim  and  costs. 

FEES. 

The  cost  for  a  summons  was  sixteen  shillings;  a 
warrant,  twenty  shillings ;  administering  an  oath  of 
affirmation,  ten  shillings;  execution,  thirty  shil- 
lings; subpoena  for  each  witness,  ten  shillings; 
venire  facias  to  summon  a  jury,  twenty  shillings; 
swearing  a  jury,  thirty  shillings ;  witness  attending 
on  summons  or  otherwise,  forty  shillings  per  day, 
and  so  on  in  proportion,  for  a  longer  time;  con- 
stable or  other  officer,  for  serving  summons,  sub- 
poena, or  other  execution,  for  each  mile  traveled, 
or  under,  twenty  shillings,  and  for  every  extra 
mile,  ten  shillings;  serving  every  execution  for 
every  pound,  one  shilling;  and  summoning  every 
jury,  sixty  shillings.  When  empaneled  on  the  trial 
of  a  case,  each  juror  received  twenty  shillings  for 
attendance  at  court,  and  if  not  empaneled,  ten  shil- 
lings was  paid  to  each  juror  per  day.    The  act  pro- 

408 


JUSTICES^  COURT  FOR  CITY MARINE  COURT. 

vided,  however,  that  in  no  case  should  costs  exceed 
forty  pounds. 

No  certiorari  or  writ  of  error  could  be  issued  un- 
less on  affidavit  therefor,  presented  to  the  justice 
within  one  month  after  judgment.  When  required 
a  copy  of  such  affidavit  was  given  to  the  adverse 
party.  Upon  the  affirmation  or  reversal  of  judg- 
ments in  the  higher  courts,  the  prevailing  party  was 
awarded  costs. 

By  chapter  9,  of  the  Laws  of  1780,  the  jurisdic- 
tion of  justices  of  the  peace,  mayors,  recorders,  etc., 
was  reduced  to  actions  involving  not  more  than  ten 
pounds,  and  the  fees  were  reduced  to  one-twelfth. 
The  attorney-general  was  authorized  by  the  Su- 
preme Court  to  proceed  against  all  justices  guilty 
of  unjust  practice. 

JUSTICES^  COURT  FOR  CITY MARINE  COURT. 

A  Justices'  Court  for  the  city  of  New  York  was 
established  in  1807,  to  consist  of  three  judges,  with 
jurisdiction  in  cases  involving  amounts  from 
twenty-five  to  fifty  dollars  and  in  marine  cases,  be- 
tween master  and  mariner,  though  in  excess  of  the 
amount  above  mentioned.  (I^aws  of  1807,  chapter 
139.) 

The  jurisdiction  of  this  court  was  further  ex- 
tended in  1817  to  one  hundred  dollars;  and  in  1819 
it  became  known  as  the  Marine  Court  of  the  city 
of  New  York;  and  the  statutes  of  1846  authorized 
the  Marine  Court  to  try  actions  of  assault  and  bat- 

409 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

tery,  false  imprisonment,  miscellaneous  prosecu- 
tions, libel,  and  slander,  and  its  general  jurisdiction 
was  increased  to  five  hundred  dollars. 

ASSISTANT-JUSTICES^  COURTS. 

Assistant-Justices'  Courts  were  officially  created 
by  the  act  of  1807,  which  provided  for  Justices' 
Courts.  Provision  was  made  for  the  establishment 
of  an  Assistant-Justices'  Court  in  each  of  the  wards 
of  the  city  of  New  York.  Twenty-five  dollars  was 
the  maximum  jurisdictional  amount  of  these  courts. 
After  a  busy  existence  subject  to  many  changes 
and  vicissitudes,  this  court  finally  became  known  as 
"  The  District  Court,"  and  one  was  established  for 
each  district  of  New  York  City.  From  these  three 
different  courts,  appeals  lay  to  the  Mayor's  Court, 
later  known  as  the  "  Court  of  Common  Pleas." 

CONSTITUTIONAL    CHANGE,    1846. 

The  following  provision  concerning  justices  of 
the  peace  is  to  be  found  in  article  VI,  section  17, 
of  the  constitution  of  1846,  which  is  as  follows: 
"  The  electors  of  the  several  towns  shall  at  their 
annual  town  meeting,  and  in  such  manner  as  the 
Legislature  may  direct,  elect  justices  of  the  peace, 
whose  terms  of  office  shall  be  four  years.  In  case 
of  an  election  to  fill  a  vacancy  occurring  before 
the  expiration  of  a  full  term,  they  shall  hold  for  the 
residue  of  the  unexpired  term.  Their  number  and 
classification  may  be  regulated  by  law." 

410 


JUSTICES    COURTS  ABOLISHED. 
CONSTITUTION   OF    1895. 

Article  VI,  section  17,  of  the  constitution  of 
1895,  relates  to  justices  of  the  peace,  and  is  to  the 
following  effect:  "  The  electors  of  the  several 
towns  shall  at  their  annual  town  meetings,  or  at 
such  other  time  and  in  such  manner  as  the  Legisla- 
ture may  direct,  elect  justices  of  the  peace,  whose 
term  of  office  shall  be  four  years.  In  case  of  an 
election  to  fill  a  vacancy  occurring  before  the  ex- 
piration of  a  full  term,  they  shall  hold  for  the 
residue  of  the  unexpired  term.  Their  number  and 
classification  may  be  regulated  by  law.  Justices  of 
the  peace  and  judges  or  justices  of  inferior  courts 
not  of  record,  and  their  clerks,  may  be  removed  for 
cause,  after  due  notice  and  an  opportunity  of  being 
heard  by  such  courts  as  are  or  may  be  prescribed 
by  law.  Justices  of  the  peace  and  District  Court 
justices  may  be  elected  in  the  different  cities  of  this 
state  in  such  manner,  and  with  such  powers,  and  for 
such  terms,  respectively,  as  are  or  shall  be  pre- 
scribed by  law;  and  all  other  judicial  officers  in 
cities  whose  election  or  appointment  is  not  otherwise 
provided  for  in  this  article,  shall  be  chosen  by  the 
electors  of  such  cities  or  appointed  by  some  local 
authorities  thereof." 

Source — Art.  VI,  sec.  18,  of  the  amended  constitution 
of  1846. 

JUSTICES^  COURTS  ABOLISHED. 

Chapter  XX,  title  3,  section  1350,  of  the  Greater 

411 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

New  York  charter,  is  to  the  following  effect: 
"  From  and  after  midnight  of  the  31st  day  of  Jan- 
uary, 1898,  the  Justices'  Courts  and  the  office  of 
justice  of  the  peace  in  the  cities  of  Brooklyn  and 
Long  Island  City,  are  abolished,  and  from  and 
after  the  passage  of  this  act,  no  person  shall  be 
elected  to  the  office  of  District  Court  justice  or  jus- 
tice of  the  peace  in  any  portion  of  the  territory  in- 
cluded within  the  city  of  New  York  as  constituted 
by  this  act." 


412 


CHAPTER   XLIV. 


CONSTITUTION  OF  1821  AND  REVISED 
STATUTES. 


Early  Conditions — Court  of  Probates  Abol- 
ished— Revised  Statutes. 

early  conditions. 

The  conditions  which  brought  about  the  consti- 
tution of  1821  are  fully  treated  in  the  chapter  on 
that  subject  which  is  to  be  found  in  the  historical 
section  of  this  work.  It  divided  the  state  into  cir- 
cuits, and  established  a  Circuit  Court  for  each 
circuit,  which  was  in  itself  an  evolution  of  the  Su- 
preme Court,  and  succeeded  the  former  itinerant 
sessions.  A  requirement  for  holding  office  was  that 
the  judge  who  was  to  preside  in  the  circuit  should 
be  a  resident  thereof.  The  year  1823  saw  a  radical 
innovation  effected  in  this  court;  its  equity  juris- 
diction was  abrogated  and  vested  in  the  chancellor, 
except  that  circuit  judges  might  act  as  vice-chan- 
cellors in  their  circuits.  An  amendment  of  1826 
conferred  equity  jurisdiction  in  the  first  district  on 
a  legal  officer  called  the  vice-chancellor,  a  step 
necessitated  by  increased  litigation. 

413 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 


COURT  OF  PROBATES  ABOLISHED. 

Chapter  70,  of  the  laws  of  1823,  abohshed  the 
Court  of  Probates  which  had  been  founded  in 
1778,  and  transferred  its  jurisdiction  to  the  surro- 
gates of  the  various  counties  subject  to  an  appeal  to 
the  chancellor,  to  whom  was  reserved  all  probate 
jurisdiction  not  otherwise  delegated. 

The  constitution  regulated  the  offices  of  chan- 
cellor and  judge  and  made  them  appointive  by 
the  governor  and  senate  instead  of  by  the  coun- 
cil of  appointment,  as  was  the  practice  formerly. 
Otherwise  no  change  was  made  which  affected  the 
courts. 

REVISED    STATUTES. 

By  the  revised  statutes  of  1829  an  attempt  was 
made  to  define  the  jurisdiction  of  the  Court  of 
Chancery,  although  by  the  act  of  1683  it  was  given 
general  equity  powers.  The  chancellor  was  vested 
with  equity  powers  under  the  revised  statutes. 

On  the  new  Court  of  Chancery  was  conferred  the 
ancient  jurisdiction  of  the  English  Court.  Under 
the  constitution  of  1821,  the  Court  of  Chancery  was 
continued  as  it  had  been  under  the  English  crown, 
and  it  was  so  specifically  regulated  by  the  revised 
statutes. 

Courts  of  Justices  of  the  Peace  and  the  County 
Courts  of  Common  Pleas  were  officially  recognizee! 
and  regulated  by  the  revised  statutes. 

414 


REVISED  STATUTES. 

Both  the  constitution  and  the  revised  statutes 
conferred  on  the  Court  for  the  Trial  of  Impeach- 
ments and  Correction  of  Errors  supreme  appellate 
jurisdiction  in  law  and  equity.  Under  the  consti- 
tution and  revised  statutes  the  practice  and  pro- 
cedure of  the  New  York  courts  were  made  to 
conform,  with  some  local  variations,  to  that  of  the 
courts  of  England. 

A  revision  of  practice  was  not  contemplated  by 
the  revised  statutes;  what  they  effected  was  some 
amendments  as  to  limitations  of  actions  in  courts; 
but  no  reform  in  practice  was  effected  prior  to 
1846. 

The  results  of  the  constitution  of  1821  had 
proved  but  inadequate  to  the  amelioration  of  con- 
ditions in  the  courts.  In  time,  legal  grievances 
were  heard  against  the  complications  and  vexations 
appurtenant  to  the  lax  and  dilatory  methods  in 
force.  The  culmination  of  all  this  was  the  conven- 
tion of  1846.  The  circuit  judges  created  under  the 
constitution  of  1821  proved  in  the  end  unsatisfac- 
tory, for  many  of  their  decisions  were  reversed  by 
the  Supreme  Court  "  in  banc." 

From  1821  to  1846,  the  state  constitution 
underwent  few  organic  changes  or  amendments; 
but  in  1826,  the  office  of  justice  of  the  peace  was 
made  elective. 


415 


CHAPTER  XLV. 


COUNTY  COURTS. 


Foundation — New  York  County  Court — Con- 
stitution OF  1846 — As  Constituted  at  Pres- 
ent— Courts  of  Sessions  Abolished. 

foundation. 

These  courts  are  exclusively  of  local  or  county 
jurisdiction.  The  primitive  Courts  of  Sessions  as 
they  were  formerly  known,  were  the  origin  of  the 
present  County  Courts. 

County  Courts  date  from  the  colonial  constitu- 
tion of  1691,  and  were  continued  and  re-established 
in  1777,  and  again  by  the  constitution  of  1821,  with 
the  additional  provision  that  the  judges'  terms  of 
office  were  to  be  extended  for  a  term  of  five  years. 

In  New  York  county,  it  was  officially  designated 
as  the  "  Court  of  Common  Pleas  for  the  City  and 
County  of  New  York."  At  first,  it  was  known  as 
the  ''  Mayor's  Court  "  and  the  mayor  presided  at 
the  sessions  of  the  court;  but  from  1805  to  1821,  the 
recorder  of  the  city  sat  as  the  presiding  judge. 

new    YORK    COUNTY    COURT. 

In  1821,  an  act  of  the  Legislature  changed  the 

417 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

name  from  the  "  Mayor's  Court "  to  that  of  the 
"Court  of  Common  Pleas  for  the  City  and  County 
of  New  York."  This  act  designated  a  first  judge 
to  officiate  as  such  during  good  behavior,  or  until 
the  age  limit  of  sixty  years.  The  constitution  of 
the  same  year  limited  the  official  term  of  the  judge 
to  five  years  and  vested  the  appointive  power  in  the 
governor. 

CONSTITUTION  OF   1846. 

As  now  constituted,  the  County  Court  is  author- 
ized under  the  following  terms  of  the  constitution 
of  1846,  article  IV,  section  14:  "There  shall  be 
elected  in  each  of  the  counties  of  this  state,  except 
the  city  and  county  of  New  York,  one  county 
judge,  who  shall  hold  his  office  for  four  years.  He 
shall  hold  the  County  Court  and  perform  the  duties 
of  the  office  of  surrogate.  The  County  Court  shall 
have  such  jurisdiction  in  cases  arising  in  Justices' 
Courts  and  in  special  cases  as  the  Legislature  may 
prescribe;  but  shall  have  no  original  civil  jurisdic- 
tion, except  in  such  special  cases. 

"  The  county  judge  with  two  justices  of  the 
peace  to  be  designated  according  to  law,  may  hold 
Courts  of  Sessions  with  such  criminal  jurisdiction 
as  the  Legislature  shall  prescribe,  and  perform  such 
other  duties  as  may  be  required  by  law. 

"  In  counties  having  a  population  exceeding 
forty  thousand,  the  I^egislature  may  provide  for 

418 


CONSTITUTION   OF    1846. 

the  election  of  a  separate  officer  to  perform  the 
duties  of  the  office  of  surrogate. 

"  The  Legislature  may  confer  equity  jurisdic- 
tion in  special  cases  upon  the  county  judge." 

AS  CONSTITUTED  AT  PRESENT. 

Article  VI,  section  14,  of  the  present  constitu- 
tion of  the  state  of  New  York  in  relation  to  County 
Courts  is  as  follows:  "  The  existing  County  Courts 
are  continued,  and  the  judges  thereof  now  in  office 
shall  hold  their  offices  until  the  expiration  of  their 
respective  terms.  In  the  county  of  Kings  there 
shall  be  two  county  judges  and  the  additional 
county  judge  shall  be  chosen  at  the  next  general 
election  held  after  the  adoption  of  this  article.  The 
successors  of  the  several  county  judges  shall  be 
chosen  by  the  electors  of  the  counties  for  the  term 
of  six  years.  County  Courts  shall  have  the  powers 
and  jurisdiction  they  now  possess,  and  also  original 
jurisdiction  in  actions  for  the  recovery  of  money 
only,  where  the  defendants  reside  in  the  county, 
and  in  which  the  complaint  demands  judgment  for 
a  sum  not  exceeding  two  thousand  dollars.  The 
Legislature  may  hereafter  enlarge  or  restrict  the 
jurisdiction  of  the  County  Courts,  provided  how- 
ever, that  their  jurisdiction  shall  not  be  so  extended 
so  as  to  authorize  an  action  therein  for  the  recovery 
of  mone}^  only,  in  which  the  sum  demanded  exceeds 
two  thousand  dollars,  or  in  which  any  person  not  a 
resident  of  the  county  is  a  defendant." 

419 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 


COURTS  OF  SESSIONS  ABOLISHED. 

"Courts  of  Sessions  except  in  the  county  of  New 
York  are  abolished  from  and  after  the  last  day  of 
December,  1895.  All  the  jurisdiction  of  the  Court 
of  Sessions  in  each  county,  except  the  county  of 
New  York,  shall  thereupon  be  vested  in  the  County 
Court  thereof,  and  all  actions  and  proceedings  then 
pending  in  such  Courts  of  Sessions  shall  be  trans- 
ferred to  said  County  Courts  for  hearing  and  de- 
termination. Every  county  judge  shall  perform 
such  duties  as  may  be  required  by  law.  His  salary 
shall  be  established  by  law,  payable  out  of  the 
county  treasury.  A  county  judge  of  any  county 
may  hold  County  Courts  in  any  other  county  when 
requested  by  the  judge  of  such  other  county." 

Source — See  Art.  VI,  sec.  15,  of  the  amended  consti- 
tution of  1846.  The  limitation  of  jurisdiction  was  raised 
from  one  to  two  thousand  dollars  and  Courts  of  Sessions 
were  abolished  and  their  jurisdiction  conferred  upon 
County  Courts  by  the  convention  of  1894. 


420 


CHAPTER  XLVI 


SUPERIOR   COURT   OF   THE   CITY   OF 
NEW  YORK. 


Reasons  for  Establishment — First  Judges. 

reasons  for  establishment. 

The  heavy  bank  failures  and  conspiracy  cases 
about  the  year  1826,  resulted  in  a  congestion  of  the 
calendars  of  both  the  Supreme  Court  and  the  Court 
of  Common  Pleas.  It  was  impossible  to  reach  a 
trial  in  either  of  the  above  courts  in  less  than  twelve 
or  fifteen  months  after  the  return  of  the  process. 
To  remedy  this  condition,  the  Legislature  passed 
an  act,  March  31,  1828,  creating  the  Superior  Court 
of  the  City  of  New  York.  It  was  given  the  same 
jurisdiction  as  the  Supreme  Court  possessed  in  all 
civil  causes,  if  either  the  defendant  or  plaintiff  were 
a  resident  of  the  city,  or  the  property  involved  were 
situated  within  the  city  limits.  This  was  the  first 
court,  established  by  a  statutory  act,  that  did  not 
have  its  jurisdiction  defined  by  a  cross-reference  to 
an  English  court.  It  was  to  be  composed  of  a  chief- 
justice  and  two  associates,  to  be  appointed  by  the 
governor  with  the  consent  of  the  senate.  Their 
terms  of  office  were  to  be  five  years. 

421 


THE  COUETS  OF  THE  STATE  OF  NEW  YORK. 


FIRST  JUDGES. 

The  first  chief -justice  of  the  court  was  Samuel 
Jones,  who  resigned  from  the  chancellorship  to 
accept  his  new  office.  Josiah  Ogden  Hoffman  and 
Thomas  J.  Oakley  were  appointed  as  associate 
judges. 

The  Superior  Court  continued  to  aid  the  Su- 
preme Court  for  a  period  of  about  sixty-seven 
years,  the  former  being  finally  abolished  by  the 
constitution  of  1895,  which  by  its  provisions  in- 
creased the  number  of  Supreme  Court  judges,  thus 
doing  awa}^  with  the  necessity  for  the  Superior 
Court. 


422 


CHAPTER   XLVII. 

COURT  OF  APPEALS. 

Origin  of  Court — Creation  of  Court — Amend- 
ment OF  1869 — Constitution  of  1895 — Va- 
cancy IN  Court  of  Appeals^  How  Filled — 
Jurisdiction — Judges  not  to  Hold  Any 
Other  Office — Removai>  of  Judges — Com- 
pensation^ Age  Restriction^  Assignment  by 
Governor. 

origin  of  court. 

The  historical  aspects  of  this  court  have  already 
been  fully  considered  in  the  main  part  of  our  work. 
As  there  shown,  it  is  to  be  traced  through  the  entire 
judicial  organization  of  the  state  until  its  constitu- 
tional establishment  in  1846.  Its  immediate  prede- 
cessor was  the  Court  for  the  Trial  of  Impeachments 
and  Correction  of  Errors,  which  was  composed 
of  the  president  of  the  senate,  for  the  time  being, 
the  senators,  chancellor,  and  judges  of  the  Supreme 
Court. 

The  Court  for  the  Trial  of  Impeachments  and 
Correction  of  Errors  was  created  under  the  consti- 
tution of  1777,  and  the  article  which  authorized  it 
provided  that  it  might  affirm  or  reverse  a  cause 

423 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

"brought  up  by  writ  of  error  on  a  question  of  law 
in  a  judgment  in  the  Supreme  Court."  The  judges 
who  rendered  the  decision  in  the  first  instance  were 
disquahfied  from  participating  in  the  final  judg- 
ment, though  they  might  justify  their  grounds  for 
pronouncing  judgment.  The  constitution  of  1821, 
article  V,  section  1,  provided  for  such  a  court  in 
similar  terms. 

CREATION  OF  COURT. 

As  at  present  constituted,  separate  and  distinct 
in  its  title,  jurisdiction,  and  functions,  this  court 
originates  in  the  constitution  of  1846.  A  differen- 
tiation is  made  in  the  article,  therein,  between  the 
trial  of  impeachments  and  the  review  of  cases  on 
appeal,  and  separate  courts  established  for  these 
different  branches  of  appellate  cognizance.  By 
article  VI,  section  2,  of  the  constitution  of  1846,  the 
provision  for  the  Court  of  Appeals  is  in  the  follow- 
ing words,  "There  shall  be  a  Court  of  Appeals 
composed  of  eight  judges,  of  whom  four  shall  be 
elected  by  the  electors  of  the  state  for  eight  years, 
and  four  selected  from  the  class  of  justices  of  the 
Supreme  Court,  having  the  shortest  time  to  serve." 

AMENDMENT  OF   1869. 

Amendments  to  the  constitution  of  1846,  by 
article  VI,  section  2,  adopted  in  1869,  authorize  the 
election  for  a  term  of  fourteen  years  of  seven 
judges  of  the  Court  of  Appeals,  of  whom  any  five 

424 


AMENDMENT  OF  1869. 

shall  constitute  a  quorum.  This  amendment  is  as 
follows:  "There  shall  be  a  Court  of  Appeals,  com- 
posed of  a  chief  judge  and  six  associate  judges,  who 
shall  be  chosen  by  the  electors  of  the  state  and  shall 
hold  their  office  for  the  term  of  fourteen  years  from 
and  including  the  first  day  of  January  next  after 
their  election.  At  the  first  election  of  judges  under 
this  constitution,  every  elector  may  vote  for  the 
chief  and  any  four  of  the  associate  judges.  Any 
five  members  of  the  court  shall  form  a  quorum  and 
the  concurrence  of  four  shall  be  necessary  to  a 
decision." 

Section  25,  article  VI,  of  the  constitution  of 
1846  is  to  the  following  effect:  "The  Legislature 
at  its  first  session  after  the  adoption  of  this  consti- 
tution shall  provide  for  the  organization  of  the 
Court  of  Appeals,  and  for  transferring  to  it  the 
business  pending  in  the  Court  for  the  Correction 
of  Errors,  and  for  the  allowance  of  writs  of  errors 
and  appeals  to  the  Court  of  Appeals  from  judg- 
ments and  decrees  of  the  present  Court  of  Chancery 
and  Supreme  Court,  and  of  the  courts  that  may  be 
organized  under  this  constitution." 

By  sections  12,  8,  7,  11,  and  13  respectively  of 
article  VI,  of  the  constitution  of  1846,  and  by 
sections  24,  10,  14,  11,  and  3,  of  article  VI,  of  the 
amendments  to  the  constitution  of  1846,  adopted  in 
1869,  provision  is  made  for  the  election,  limitations, 
compensation,  and  removal  of  judges  of  the  Court 
of  Appeals,  and  the  filling  of  vacancies  caused  by 
their  death  or  disability. 

425 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 


CONSTITUTION    OF    1895. 

The  last  state  constitution  adopted  in  1895,  pro- 
vides for  the  Court  of  Appeals,  by  article  VI,  sec- 
tion 7,  in  the  following  terms:  "The  Court  of 
Appeals  is  continued.  It  shall  consist  of  the  chief 
judge,  the  associate  judges  now  in  office,  who  shall 
hold  their  offices  until  the  expiration  of  their 
respective  terms,  and  their  successors,  who  shall  be 
chosen  by  the  electors  of  the  state.  The  official 
terms  of  the  chief  judge  and  the  associate  judges 
shall  be  fourteen  years  from  and  including  the  first 
day  of  January  next  after  their  election.  Five 
members  of  the  court  shall  form  a  quorum,  and  the 
concurrence  of  four  shall  be  necessary  to  a  decision. 
The  court  shall  have  power  to  appoint  and  to 
remove  its  reporter,  clerk,  and  attendants.  When- 
ever, and  as  often  as,  a  majority  of  the  judges  of 
the  Court  of  Appeals  shall  certify  to  the  governor 
that  said  court  is  unable  by  reason  of  the  accumula- 
tion of  causes  pending  therein  to  hear  and  dispose  of 
the  same  with  reasonable  speed  the  governor  shall 
designate  not  more  than  four  justices  of  the  Su- 
preme Court  to  serve  as  associate  judges  of  the 
Court  of  Appeals.  The  justices  so  designated  shall 
be  relieved  from  their  duties  as  justices  of  the 
Supreme  Court,  and  shall  serve  as  associate  judges 
of  the  Court  of  Appeals  until  the  causes  undisposed 
of  in  said  court  are  reduced  to  two  hundred,  when 
they  shall  return  to  the  Supreme  Court.    The  gov- 

426 


CONSTITUTION   OF   1895. 

ernor  may  designate  justices  of  the  Supreme  Court 
to  fill  vacancies.  No  justice  shall  serve  as  associate 
judge  of  the  Court  of  Appeals  except  while  holding 
the  office  of  justice  of  the  Supreme  Court  and  not 
more  than  seven  judges  shall  sit  in  any  case." 

(Amended  by  vote  of  the  people,  November  7th,  1899.) 
Source — ^Art.   VI,   sec.   2,   of   amended   constitution   of 
1846,  with  language  somewhat  changed. 

VACANCY  IN  COURT  OF  APPEALS HOW  FILLED. 

Should  a  vacancy  occur  in  the  personnel  of  the 
Court  of  Appeals,  section  8,  of  the  same  article 
becomes  operative,  as  follows:  "When  a  vacancy 
shall  occur  otherwise  than  by  expiration  of  term,  in 
the  office  of  chief  or  associate  judge  of  the  Court 
of  Appeals,  the  same  shall  be  filled,  for  a  full  term, 
at  the  next  general  election  happening  not  less  than 
three  months  after  vacancy  occurs;  and  until  the 
vacancy  shall  be  so  filled,  the  governor,  by  and  with 
the  advice  and  consent  of  the  senate,  if  the  senate 
shall  be  in  session,  or  if  not  in  session,  the  governor 
may  fill  such  vacancy  by  appointment.  If  any  such 
appointment  of  chief  judge  shall  be  made  from 
among  the  associate  judges,  a  temporary  appoint- 
ment of  associate  judge  shall  be  made  in  like 
manner;  but  in  such  case,  the  person  appointed 
chief  judge  shall  not  be  deemed  to  vacate  his  office 
of  associate  judge  any  longer  than  until  the  expira- 
tion of  his  appointment  as  chief  judge.  The  powers 
and  jurisdiction  of  the  court  shall  not  be  suspended 

427 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

for  want  of  appointment  or  election,  when  the 
number  of  judges  is  sufficient  to  constitute  a 
quorum.  All  appointments  under  this  section  shall 
continue  until  and  including  the  last  day  of  Decem- 
ber next  after  the  election  at  which  the  vacancy 
shall  be  filled." 

Source — Art.  VI,  sec.  3,  of  amended  constitution  of 
1846  with  slight  change  in  language. 

JURISDICTION. 

Regarding  the  jurisdiction  of  the  court,  section 
9  says:  "After  the  last  day  of  December,  1895, 
the  jurisdiction  of  the  Court  of  Appeals  except 
where  the  judgment  is  of  death,  shall  be  limited  to 
the  review  of  questions  of  law.  No  unanimous 
decision  of  the  Appellate  Division  of  the  Supreme 
Court  that  there  is  evidence  supporting  or  tending 
to  sustain  a  finding  of  fact  or  a  verdict  not  directed 
by  the  court,  shall  be  reviewed  by  the  Court  of  Ap- 
peals. Except  where  the  judgment  is  of  death, 
appeals  may  be  taken,  as  of  right,  to  said  court 
only  from  judgments  or  orders  entered  upon 
the  decisions  of  the  Appellate  Division  of  the 
Supreme  Court,  finally  determining  actions  or 
special  proceedings,  and  from  orders  granting  new 
trials  on  exceptions,  where  the  appellants  stipulate 
that  upon  affirmance,  judgment  absolute  shall  be 
rendered  against  them.  The  Appellate  Division 
in  any  department  may,  however,  allow  an  appeal 
upon  any  question  of  law,  which  in  its  opinion 
ought  to  be  reviewed  by  the  Court  of  Appeals. 

428 


REMOVAL   OF   JUDGES. 

"The  Legislature  may  further  restrict  the  juris- 
diction of  the  Court  of  Appeals,  and  the  right  of 
appeals  thereto,  but  the  right  of  appeal  shall  not 
depend  upon  the  amount  involved. 

"The  provisions  of  this  section  shall  not  apply  to 
orders  made  or  judgments  rendered  by  any  General 
Term  before  the  last  day  of  December,  1895,  but 
appeals  therefrom  may  be  taken  under  existing  pro- 
visions of  law." 

Source — Mostly  new. 

JUDGES  NOT  TO  HOLD  ANY  OTHER  OFFICE. 

Section  10  reads  as  follows:  "The  judges  of  the 
Court  of  Appeals  and  justices  of  the  Supreme 
Court  shall  not  hold  any  other  office  or  public  trust. 
All  votes  for  any  of  them  for  any  other  than  a 
judicial  office,  given  by  the  Legislature  or  the  peo- 
ple, shall  be  void." 

Source — Art.  VI,  sec.  10,  of  the  amended  constitution 
of  1846  without  change. 

REMOVAL   OF   JUDGES. 

In  relation  to  removal  of  judges  we  refer  to  sec- 
tion 11:  "Judges  of  the  Court  of  Appeals  and 
justices  of  the  Supreme  Court  may  be  removed  by 
concurrent  resolution  of  both  houses  of  the  Legis- 
lature, if  two-thirds  of  all  the  members  elected  to 
each  house  concur  therein.  All  other  judicial 
officers,  except  justices  of  the  peace  and  judges  or 
justices  of  inferior  courts  not  of  record,  may  be 

429 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

removed  by  the  senate,  on  the  recommendatian  of 
the  governor,  if  two-thirds  of  all  the  members 
elected  to  the  senate  concur  therein.  But  no  officer 
shall  be  removed  by  virtue  of  this  section  except 
for  cause,  which  shall  be  entered  on  the  journals, 
nor  unless  he  shall  have  been  served  with  a  state- 
ment of  the  cause  alleged  and  shall  have  had  an 
opportunity  to  be  heard.  On  the  question  of  re- 
moval, the  yeas  and  nays  shall  be  entered  on  the 
journal." 

Source — Art.  VI,  sec.  11,  of  amended  constitution  of 
1846. 

COMPENSATION^    AGE    RESTRICTION^    ASSIGNMENT    BY 
GOVERNOR. 

Finally,  section  12  states:  "  The  judges  and 
justices  hereinbefore  mentioned  shall  receive  for 
their  services  a  compensation  established  by  law, 
which  shall  not  be  increased  or  diminished  during 
their  official  terms,  except  as  provided  in  section 
five  of  this  article.  No  person  shall  hold  the  office 
of  judge  or  justice  of  any  court  longer  than  until 
and  including  the  last  day  of  December  next  after 
he  shall  be  sevent}^  years  of  age.  No  judge  or  jus- 
tice elected  after  the  first  day  of  January,  1894, 
shall  be  entitled  to  receive  any  compensation  after 
the  last  day  of  December  next  after  he  shall  be 
seventy  years  of  age,  but  the  compensation  of  every 
judge  of  the  Court  of  Appeals  or  justice  of  the 
Supreme  Court  elected  prior  to  the  first  day  of 

430 


ASSIGNMENT  BY  GOVERNOR. 

January,  1894,  whose  term  of  office  has  been,  or 
whose  present  term  of  office  shall  be,  so  abridged, 
and  who  shall  have  served  as  such  judge  or  justice 
ten  years  or  more,  shall  be  continued  during  the 
remainder  of  the  term  for  which  he  was  elected; 
but  any  such  judge  or  justice  may,  with  his  consent, 
be  assigned  by  the  governor,  from  time  to  time,  to 
any  duty  in  the  Supreme  Court,  while  his  compen- 
satioh  is  so  continued." 

Source — The  first  sentence  was  taken  from  the  first 
sentence  of  Art.  VI,  sec.  14,  of  the  amended  constitution 
of  1846  without  change  in  language.  The  sentence  relat- 
ing to  age  limitation  is  a  re-enactment  of  a  similar  provi- 
sion contained  in  Art.  VI,  sec.  13,  of  such  constitution. 
The  remainder  of  the  section  was  added  by  the  convention 
of  1894. 


431 


CHAPTER   XLVIII 


SURROGATES'  COURTS. 


As  Constituted  in  1846  —  Separation  of 
County  Officers — Constitution  of  1895 — 
Vacancies^  How  Filled. 

AS  constituted  in  1846. 

As  previously  stated,  this  court  has  existed  from 
early  colonial  days,  but  its  constitutional  existence 
emanates  from  the  constitution  of  1846  by  article 
VI,  section  14,  relating  to  County  Court  judges,  as 
follows : 

"  He  shall  hold  the  County  Court  and  perform 
the  duties  of  the  office  of  surrogate." 

An  extra  surrogate  was  provided  for  as  follows: 
"  In  counties  having  a  population  exceeding  forty 
thousand,  the  Legislature  may  provide  for  the 
election  of  a  separate  officer  to  perform  the  duties 
of  the  office  of  surrogate." 

The  election  of  surrogates  in  special  cases,  under 
the  Laws  of  1847,  chapter  276,  section  2,  is  as  fol- 
lows: "  There  shall  be  elected  a  separate  officer  to 
perform  the  duties  of  the  office  of  surrogate  in  each 
of  the  counties  of  this  state  (except  New  York) 
having  a  population  exceeding  forty  thousand  in 

433 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

which  such  separate  officer  shall  be  determined  upon 
as  hereinafter  provided." 

SEPARATION  OF  COUNTY  OFFICJpRS. 

The  offices  of  county  judge  and  surrogate  are 
differentiated  from  each  other  by  the  laws  of  1847, 
chapter  276,  section  11:  "They  (the  Board  of 
Supervisors  of  the  several  counties  of  the  state,  ex- 
cept New  York)  shall  also  at  the  same  meeting 
(May  25th,  1847,  at  the  office  of  the  county  clerk 
in  their  respective  counties),  in  those  counties  hav- 
ing a  population  exceeding  forty  thousand,  deter- 
mine whether  the  office  of  count}^  judge  and 
surrogate  shall  be  separate,  and  if  separate,  they 
shall  fix  the  salary  of  such  separate  officer.  This 
section  does  not  affect  separate  officers  and  deter- 
mined salaries." 

Section  12  of  the  same  chapter  provides  as  fol- 
lows: "  Such  elected  separate  officers  are  to  enter 
upon  their  duties  the  first  Monday  in  July,  1847, 
for  four  years." 

CONSTITUTION  OF   1895. 

As  now  constituted,  existing  Surrogates'  Courts 
are  authorized  by  article  YI,  section  15,  of  the  con- 
stitution of  1895,  which  reads:  "  The  existing  Sur- 
rogates' Courts  are  continued,  and  the  surrogates 
now  in  office  shall  hold  their  offices  until  the  expira- 

434 


CONSTITUTION  OF  1895. 

tion  of  their  terms.  Their  successors  shall  be  chosen 
by  the  electors  of  their  respective  counties,  and  their 
terms  of  office  shall  be  six  years,  except  in  the 
county  of  New  York,  where  they  shall  continue  to 
be  fourteen  years.  Surrogates  and  Surrogates' 
Courts  shall  have  the  jurisdiction  and  powers  which 
the  surrogates  and  existing  Surrogates'  Courts  now 
possess,  until  otherwise  provided  by  the  Legislature. 
The  county  judge  shall  be  surrogate  of  his  county, 
except  where  a  separate  surrogate  has  been  or  shall 
be  elected.  In  counties  having  a  population  ex- 
ceeding forty  thousand,  wherein  there  is  no  separate 
surrogate,  the  Legislature  may  provide  for  the 
election  of  a  separate  officer  to  be  a  surrogate, 
whose  term  of  office  shall  be  six  years.  When  the 
surrogate  shall  be  elected  as  a  separate  officer,  his 
salary  shall  be  established  by  law,  payable  out  of 
the  county  treasury.  No  county  judge  or  surro- 
gate shall  hold  office  longer  than  until  and  includ- 
ing the  last  day  of  December  next  after  he  shall  be 
seventy  years  of  age." 

VACANCIES^  HOW  FILLED. 

"  Vacancies  occurring  in  the  office  of  county 
judge  or  surrogate  shall  be  filled  in  the  same  man- 
ner as  like  vacancies  occurring  in  the  Supreme 
Court.  The  compensation  of  any  county  judge  or 
surrogate  shall  not  be  increased  or  diminished  dur- 
ing his  term  of  office.    For  the  relief  of  Surrogates' 

435 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

Courts,  the  Legislature  may  confer  upon  the  Su- 
preme Court  in  anj^  county  having  a  population 
exceeding  four  hundred  thousand,  the  powers  and 
jurisdiction  of  surrogates,  with  authority  to  try 
issues  of  fact  by  jury  in  probate  cases." 

Source — See  Art.  VI,  sec.   15,  of  the  amended  consti- 
tution of  1846. 


436 


CHAPTER  XLIX. 


CORONERS'  COURTS. 


Functions  of  Coroner — County  Law^  1892 — 
Coroner  in  Erie  County. 

functions  of  coroner. 

The  coroner  is  a  county  officer,  and  his  functions 
are  those  of  a  medical  examiner  in  all  cases  where 
a  decedent  has  met  death  through  violence  or  under 
such  circumstances  as  to  create  a  suspicion  that  his 
death  was  compassed  or  caused  by  other  than  nat- 
ural means  or  agencies,  and  in  violation  of  law. 

The  office  of  coroner  has  existed  since  the  in- 
auguration of  a  regular  system  of  judicature  for 
the  colony  and  state  of  New  York,  and  has  been 
made  constitutional  in  each  county,  by  the  different 
state  constitutions. 

COUNTY  LAW^   1892. 

The  county  law  of  1892,  article  XI,  section  180, 
has  the  following  provision  in  relation  to  this  office : 
"  There  shall  continue  to  be  elected  *  *  *  *  in  each 
of  the  counties  containing  a  population  of  one 
hundred  thousand  and  over,  four  coroners,  and  in 
all  other  counties  such  number  of  coroners,   not 

437 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

more  than  four,  as  shall  be  fixed  by  the  Board  of 
Supervisors,  who  shall  respectively  hold  their  of- 
fices for  three  years  from  and  including  the  first 
day  of  January  succeeding  their  election." 

The  procedure  in  cases  within  the  coroner's  jur- 
isdiction is  by  autopsy  or  post-mortem  examina- 
tion. Should  a  question  of  fact  arise,  it  is  the 
coroner's  duty  to  summon  a  jury,  known  as  a  cor- 
oner's jury,  and  proceed  by  inquest.  For  this 
purpose,  witnesses  may  be  subpoenaed  and  exam- 
ined under  oath,  when  in  the  judgment  of  the  cor- 
oner reasonable  grounds  exist  therefor.  Upon 
information  duly  laid,  warrants  may  be  issued  for 
the  apprehension  of  any  person  or  persons  deemed 
responsible  or  accessory  to  the  violent  or  unlawful 
death  of  the  deceased. 

This  office  now  exists  in  each  county  of  the  state, 
except  the  county  of  Erie,  where  the  office  of  cor- 
oner has  been  abolished,  and  instead,  that  of  county 
medical  examiner  created  under  an  act  of  the  Leg- 
islature, laws  of  1902,  chapter  577,  which  is  here- 
with printed  in  full. 

CORONER  IN  ERIE  COUNTY. 

AN  ACT  abolishing  tbe  office  of  coroner  of  the  county  of 
Erie,  and  creating  the  office  of  county  medical  examiner, 
and  prescribing  its  duties. 

Became  a  law,  April  14,  1902,  with  the  approval  of  the 
governor.     Passed,  three-fifths  being  present. 
The  People  of  the  State  of  New  York,  represented  in 

Senate  and  Assembly,  do  enact  as  follows: 

438 


CORONER  IN  ERIE  COUNTY. 

Section  1.  The  office  of  coroner  of  the  county  of  Erie 
is  hereby  abolished. 

Sec.  2.  The  board  of  supervisors  of  the  county  of  Erie 
shall  appoint  a  county  medical  examiner,  who  shall  be  a 
duly  qualified  practitioner  of  medicine  and  surgery, 
and  graduate  of  a  medical  college,  and  shall  have 
at  least  five  years'  actual  experience  in  the  practice  of  his 
profession,  and  a  deputy  medical  examiner,  who  shall  also 
be  a  duly  qualified  medi<;al  practitioner  of  medicine  and 
surgery  and  graduate  of  a  medical  college,  and  shall  have 
had  at  least  five  years'  experience  in  the  practice  of  his 
profession.  The  first  term  of  office  of  such  medical  exam- 
iner, and  deputy  medical  examiner  shall  continue  until  the 
first  day  of  January,  nineteen  hundred  and  six,  and  shall 
thereafter  be  for  a  term  of  three  years,  and  he  shall  be 
subject  to  removal  by  the  board  of  supervisors  for  cause, 
stated  in  writing,  after  an  opportunity  to  be  heard  in  his 
defense.  The  said  medical  examiner  shall  receive  an 
annual  salary  of  three  thousand  dollars,  and  the  said 
deputy  medical  examiner  shall  receive  an  annual  salary  of 
two  thousand  dollars,  each  to  be  paid  in  the  same  manner 
as  other  officers  of  such  county,  and  they  shall  receive  in 
addition  thereto  all  of  their  actual  and  necessary  expenses 
incurred  in  the  performance  of  their  official  duties,  to  be 
audited  and  paid  in  the  same  manner  as  other  charges 
against  the  said  count3\ 

Sec.  S.  Such  county  medical  examiner,  together  with 
such  deputy  county  medical  examiner,  shall  have  an  office 
in  the  city  of  Buffalo,  which  shall  be  furnished  and  sup- 
plied in  the  same  manner  as  the  other  county  offices. 

Sec.  4.  The  said  medical  examiner  and  the  said  deputy 
medical  examiner  before  entering  upon  the  duties  of  their 
office  shall  take  the  constitutional  oath  of  office,  and  shall 
each  give  a  bond,  with  sureties,  to  the  people  of  the  state 
of  New  York,  the  said  medical  examiner  in  the  sum  of 

4.39 


THE  COURTS  OF  THE  STATE  OF  NEW   YORK. 

five  thousand  dollars,  and  the  said  deputy  medical  exam- 
iner in  the  sum  of  five  thousand  dollars,  for  the  faithful 
perform'ance  of  their  duties,  said  bond  to  be  approved  as 
to  its  form  and  sufliciency  by  the  county  judge  of  Erie 
county. 

Sec.  5.  If  the  condition  of  any  such  bond  be  broken  to 
the  injury  of  any  person,  the  officer  Avho  gave  it  shall  be 
liable  to  removal  from  his  office,  and  be  subject  to  like 
penalties  as  sheriffs,  in  like  cases,  and  actions  may  be 
brought  by  the  injured  person  upon  such  bond,  in  like 
manner  as  upon  the  official  bonds  of  sheriffs. 

Sec.  6.  The  said  medical  examiner  and  the  said  deputy 
medical  examiner  under  the  direction  of  the  said  medical 
examiner,  shall  make  examinations  as  hereinafter  provided 
upon  the  view  of  the  dead  bodies  of  such  persons  only  as 
are  supposed  to  have  come  to  their  death  by  violence. 

Sec.  7.  When  the  medical  examiner,  or  the  said  deputy 
medical  examiner  has  notice  that  there  has  been  found,  or 
is  lying  within  the  count}'  of  Erie,  the  dead  body  of  a  per- 
son, who  is  supposed  to  have  come  to  his  death  by  violence, 
he  shall  forthwith  repair  to  the  place  where  such  body  lies, 
and  take  charge  of  the  same,  and  if  on  view  thereof  and 
personal  inquiry  into  the  cause  and  manner  of  the  death, 
he  deems  a  further  examination  necessary,  he  shall,  upon 
being  thereto  authorized  in  writing  by  the  district-attor- 
ney of  Erie  county,  or  by  a  justice  of  the  peace  of  the 
town,  where  such  body  lies,  make  an  autopsy,  and  shall 
then  and  there  carefully  reduce,  or  cause  to  be  reduced  to 
writing  every  fact  and  circumstance,  tending  to  show  the 
condition  of  the  body,  and  the  cause  and  manner  of  death, 
which  record  he  shall  subscribe. 

Sec.  8.  If  upon  such  view,  personal  inquiry  or  autopsy 
the  said  medical  examiner  or  his  deputy  is  of  the  opinion 
that  the  death  was  caused  by  violence,  he  shall  at  once 
notify  the  district-attorney  and  the  police  justice  of  the 

440 


CORONER  IX  ERIE  COUNTY. 

city  of  Buffalo,  or  a  justice  of  the  peace  of  the  town  in 
which  the  body  lay  when  found,  or  the  county  judge  of 
Erie  county,  or  a  justice  of  the  Supreme  Court,  and  shall 
file  a  duly  attested  copy  of  the  record  of  his  autopsy  in 
the  office  of  the  clerk  of  the  county  of  Erie,  and  a  like 
copy  with  the  district-attorney  of  the  county  of  Erie,  and 
shall  in  all  cases  certify  to  the  clerk  or  registrar  having  in 
custody  the  records  of  births,  marriages,  and  deaths  in  the 
city  of  Buffalo  or  the  town  In  which  the  person  deceased 
came  to  his  death,  the  name  and  residence  of  the  person 
deceased,  if  known,  or  when  the  name  and  residence  cannot 
be  ascertained,  a  description  of  the  person  deceased,  as 
fully  as  may  be,  for  identification,  together  with  the  cause 
and  manner  by  and  in  which  he  came  to  his  death. 

Sec.  9.  The  justice  or  judge  shall  thereupon  hold  an 
inquest,  which  may  be  private,  in  which  case  any  or  all  the 
persons,  other  than  those  required  to  be  present  by  the 
provisions  of  this  chapter,  ma}^  be  excluded  from  the  place 
where  such  inquest  is  held,  and  said  justice  or  judge  may 
also  direct  the  witnesses  to  be  kept  separate,  so  that  they 
cannot  converse  with  each  other,  until  they  have  been 
examined.  The  district-attorney  or  some  person  desig- 
nated by  him  may  attend  the  inquest  and  examine  all 
witnesses. 

Sec.  10.  The  justice  or  judge  holding  such  inquest, 
or  the  district-attorney,  may  issue  subpoenas  for  witnesses 
returnable  before  such  justice  or  judge;  the  attendance 
of  persons  served  with  such  process  may  be  enforced  in 
the  same  manner,  and  they  shall  be  subject  to  the  same 
penalties  as  if  served  with  a  subpoena  in  behalf  of  the 
people,  in  a  criminal  prosecution  pending  in  a  court  held 
by  such  justice  or  judge. 

Sec.  11.  The  justice  or  judge  presiding  at  such  inquest 
shall,  after  hearing  the  testimony,  draw  up  and  sign  a 
report  in  which  he  shall  find  and  certify  when,  where,  and 

441 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

by  what  means  the  person  deceased  came  to  his  death,  his 
name,  if  known,  and  all  the  material  circumstances  attend- 
ing his  death,  and  if  it  appears  that  his  death  resulted 
wholly  or  in  part  by  the  unlawful  act  of  any  other  person 
or  persons,  he  shall  further  state  the  name  or  names  of 
such  person  or  persons,  if  known  to  him,  and  he  shall  file 
such  report  in  the  office  of  the  clerk  of  said  county  of 
Erie. 

Sec.  12.  If  the  said  justice  or  judge  finds  that  murder, 
manslaughter,  or  an  assault  in  any  degree  has  been  com- 
mitted, he  may  bind  over,  as  in  criminal  prosecutions,  such 
witnesses  as  he  deems  necessary  or  as  the  district-attorney 
may  designate,  to  appear  and  testify  at  the  court  in  which 
an  indictment  for  such  offense  may  be  found  or  presented. 

Sec.  13.  If  a  person  charged  by  the  report  of  such 
justice  or  judge  with  the  commission  of  an  offense  is  not 
in  custody,  the  justice  shall  forthwith  issue  process  for  his 
apprehension,  and  such  process  shall  be  made  returnable 
before  any  court  or  magistrate  having  jurisdiction  in  the 
premises,  who  shall  proceed  therein  in  the  manner  required 
by  law,  but  nothing  herein  shall  prevent  any  such  justice 
or  judge  from  issuing  such  process  before  the  finding  of 
such  report,  if  it  is  otherwise  lawful  to  issue  the  same. 

Sec.  14.  If  said  medical  examiner,  or  his  deputy,  re- 
ports that  a  death  was  not  caused  by  violence  and  the 
district-attorney  is  of  the  contrary  opinion,  the  district- 
attorney  may,  notwithstanding  such  report,  direct  an  in- 
quest to  be  held,  in  accordance  with  the  provisions  of  this 
chapter,  at  which  inquest  he  or  some  person  designated  by 
him,  shall  be  present  and  examine  all  the  witnesses. 

Sec.  15.  Such  county  medical  examiner  shall  take 
charge  of  any  money  or  other  property  found  on  the  body 
of  a  person,  the  death  of  whom  was  investigated  as  pro- 
vided in  this  act,  and  immediately  deliver  the  same  to  the 
county  treasurer,  who  shall  hold  the  same  subject  to  the 

442 


CORONER  IN  ERIE  COUNTY. 

demand  of  the  legal  representatives  of  such  person.  Un- 
less such  money  or  other  property  is  called  for  within 
sixty  days  from  such  delivery,  the  county  treasurer  shall 
deposit  such  money  in  the  manner  provided  by  the  code  of 
civil  procedure  in  case  of  money  paid  into  court ;  or  in  case 
of  other  property  he  shall  sell  it  at  public  auction  upon 
reasonable  public  notice,  and  deposit  the  proceeds  thereof 
in  the  same  manner.  The  money  so  deposited  with  inter- 
est, shall  be  paid  to  the  legal  representatives  at  any  time, 
within  six  years  from  the  time  of  the  delivery  of  such 
money  or  property  to  the  county  treasurer,  upon  an  order 
of  a  justice  of  the  Supreme  Court  or  the  county  judge  of 
Erie  county. 

Sec.  16.     This  act  shall  take  effect  immediately. 


443 


CHAPTER   L 


APPELLATE  DIVISION  OF  THE 
SUPREME  COURT. 


Successor  to  General  Term  —  Judicial  De- 
partments— Appellate  Division^  How  Con- 
stituted— Governor  to  Designate  Justices 
— Jurisdiction — Reporter — Terms  —  Judges 
NOT  TO  Sit  in  Revieav — Testimony  in  Equity 
Cases. 

successor  to  general  term. 

This  particular  branch  of  the  judicial  organiza- 
tion of  the  state  is  of  recent  creation,  dating  from 
the  constitution  of  1895.  It  is  the  successor  of  a 
like  appellate  branch  of  the  Supreme  Court  which 
was  formerly  known  as  the  General  Term. 

The  section  of  the  constitution  in  which  it  orig- 
inates is  found  in  article  VI,  section  2,  and  is  as  fol- 
lows : 

judicial  departments APPELLATE  DIVISION, 

HOW  CONSTITUTED. 

"  The  Legislature  shall  divide  the  state  into  four 
judicial  departments.  The  first  department  shall 
consist  of  the  county  of  New  York ;  the  others  shall 

445 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

be  bound  by  county  lines,  and  be  compact  and 
equal  in  population  as  nearly  as  may  be.  Once 
every  ten  years  the  Legislature  may  alter  the  judi- 
cial departments,  but  without  increasing  the  num- 
ber thereof.  There  shall  be  an  Appellate  Division 
of  the  Supreme  Court,  consisting  of  seven  justices 
in  the  first  department,  and  of  five  justices  in  each 
of  the  other  departments.  In  each  department 
four  shall  constitute  a  quorum,  and  the  concurrence 
of  three  shall  be  necessary  to  a  decision.  No  more 
than  five  justices  shall  sit  in  any  case." 

GOVERNOR  TO  DESIGNATE  JUSTICES. 

''  From  all  the  justices  elected  to  the  Supreme 
Court,  the  governor  shall  designate  those  who  shall 
constitute  the  Appellate  Division  in  each  depart- 
ment; and  he  shall  designate  the  presiding  justice 
thereof,  who  shall  act  as  such  during  his  term  of 
office,  and  shall  be  a  resident  of  the  department. 
The  other  justices  shall  be  designated  for  terms  of 
five  years,  or  the  unexpired  portions  of  their  respec- 
tive terms  of  office,  if  less  than  five  years.  From 
time  to  time  as  the  terms  of  such  designations  ex- 
pire, or  vacancies  occur,  he  shall  make  new  desig- 
nations. A  majority  of  the  justices  so  designated 
to  sit  in  the  Appellate  Division  in  each  department 
shall  be  residents  of  the  department.  He  may  also 
make  temporary  designations  in  case  of  the  ab- 
sence or  inability  to  act  of  any  justice  of  the  Ap- 
pellate Division,  or  in  case  the  presiding  justice  of 

446 


GOVERNOR  TO  DESIGNATE  JUSTICES. 

any  Appellate  Division  shall  certify  to  him  that 
one  or  more  additional  justices  are  needed  for  the 
speedy  disposition  of  the  business  before  it.  When- 
ever the  Appellate  Division  in  any  department 
shall  be  iniable  to  dispose  of  its  business  within  a 
reasonable  time,  a  majority  of  the  ]3residing  jus- 
tices of  the  several  departments  at  a  meeting  called 
by  the  presiding  justice  of  the  department  in  ar- 
rears may  transfer  any  pending  appeals  from  such 
department  to  any  other  de])artment  for  hearing 
and  determination." 

JURISDICTION. 

"No  justice  of  the  Appellate  Division  shall  ex- 
ercise an}^  of  the  powers  of  a  justice  of  the  Su- 
preme Court  other  than  those  of  a  justice  out  of 
court,  and  those  pertaining  to  the  Appellate  Divi- 
sion or  to  the  hearing  and  decision  of  motions 
submitted  by  consent  of  counsel.  From  and  after 
the  last  day  of  December,  1895,  the  Appellate 
Division  shall  have  the  jurisdiction  now  exercised 
by  the  Supreme  Court  at  its  General  Terins  and  by 
the  General  Terms  of  the  Court  of  Common  Pleas 
for  the  city  and  county  of  New  York,  the  Superior 
Court  of  the  city  of  New  York,  the  Superior 
Court  of  EufFalo,  and  the  City  Court  of  Brooklyn, 
and  such  additional  jurisdiction  as  may  be  con- 
ferred by  the  Legislature." 


447 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 


REPORTER TERMS. 

"  It  shall  have  power  to  appoint  and  remove  a 
reporter.  The  justices  of  the  Appellate  Division 
in  each  department  shall  have  power  to  fix  the 
times  and  places  for  holding  Special  and  Trial 
Terms  therein,  an(]  to  assign  the  justices  in  the 
departments  to  hold  such  terms;  or  to  make  rules 
therefor." 

(Amended  by  vote  of  people,  November  7th,  1899.) 
Source — MostW  new.     The  Appellate  Division  is  a  sub- 
stitute for,  and  has  the  jurisdiction  of,  the  former  general 
term. 

JUDGES  NOT  TO  SIT  IN  REVIEW TESTIMONY  IN 

EQUITY  CASES. 

Section  3  goes  on  to  say:  "  No  judge  shall  sit 
in  the  Appellate  Division  or  in  the  Court  of  Ap- 
peals in  review  of  a  decision  made  by  him  or  by  any 
other  court  of  which  he  was  at  the  time  a  sitting 
member.  The  testimony  in  equity  cases  shall  be 
taken  in  like  manner  as  in  cases  at  law ;  and  except 
as  herein  otherwise  provided,  the  Legislature  shall 
have  the  same  power  to  alter  and  regulate  the  juris- 
diction and  proceedings  in  law  and  in  equity  that  it 
has  heretofore  exercised." 

Source — Art.  VI,  sec.  8,  of  the  amended  constitution  of 
1846. 


448 


CHAPTER    LI. 


COURT  OF  MAGISTRATES  OF  THE 
CITY  OF  NEW  YORK. 


Created  by  New  York  Charter — Organiza- 
tion AND  Powers  of  the  Courts — Children's 
Part  in  First  Division — Inferior  Courts  of 
Criminal  Jurisdiction. 

created  by  new  york  charter. 

Chapter  XX,  title  3,  section  1391,  of  the  Greater 
New  York  Charter,  provides  for  the  above  court  in 
the  following  terms:  "  In  each  of  said  districts 
there  shall  be  a  Board  of  City  Magistrates  com- 
posed of  the  magistrates  therein  in  office  on  the 
first  day  of  January,  1902,  and  such  as  thereafter 
may  be  appointed  or  elected  pursuant  to  law.  The 
board  for  the  first  division  shall  consist  of  fifteen 
magistrates,  ten  of  whom  shall  be  residents  and 
electors  of  the  Borough  of  Brooklyn,  three  of  the 
Borough  of  Queens,  and  two  of  the  Borough  of 
Richmond,  which  said  board  shall  be  created  as 
hereinafter  provided." 

(As  amended  by  Laws  of  1903,  Chap.  410.) 

ORGANIZATION   AND   POWERS  OF  THE   COURTS. 

In  chapter  XX,   title  3,   section   1391,   of  the 

449 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

Greater  New  York  Charter,  occurs  the  following 
provision:  "  Each  Board  of  the  City  Magistrates 
may  elect  a  president  from  their  own  number,  and 
at  pleasure  remove  him  and  elect  a  successor.  All 
the  meetings  of  such  board  shall  be  public  and  its 
proceedings  shall  be  recorded  in  its  books  of  min- 
utes by  the  secretary  and  shall  be  preserved.  Each 
board  may  designate  a  police  clerk  to  act  as  his 
secretary  and  from  time  to  time  substitute  any 
other;  and  the  salary  of  such  police  clerk  as  such 
secretary  shall  not  exceed  five  hundred  dollars  per 
annum.  Each  board  shall  establish  public  rules 
relative  to  its  meetings,  which  as  far  as  possible 
shall  be  held  at  regular  times  for  the  order  and 
transaction  of  its  business  thereat;  for  the  keeping 
and  preservation  of  the  minutes  of  its  doings;  for 
the  appointment  of  employees;  and  for  the  pubhc 
inspection  of  its  minutes,  under  the  care  of  the 
secretary  at  reasonable  times.  The  concurrence  of 
a  majority  of  all  the  members  of  the  Board  of  City 
Magistrates  shall  be  necessary  to  adopt  any  resolu- 
tion of  said  board." 

CHILDREN'S  PART  IN  FIRST  DIVISION. 

Chapter  20,  title  3,  section  1399,  of  the  charter, 
is  to  the  following  effect:  "The  Board  of  City 
Magistrates  of  the  first  division  shall  assign  a  part 
for  the  hearing  and  disposition  of  cases  now  within 
the  jurisdiction  of  said  magistrates  involving  the 
trial  or  commitment  of  children,  which  part  may 

450 


CHIIJ)REN  S  PART  IN  FIRST  DIVISION. 

for  convenience  be  called  a  Children's  Court  and  in 
all  such  cases  the  magistrate  holding  said  court 
shall  have  all  the  powers,  duties,  and  jurisdiction 
now  possessed  by  the  city  magistrates  within  said 
first  division.  Said  Children's  Court  shall  be  held 
by  the  several  magistrates  in  rotation  in  such  man- 
ner as  may  be  determined  by  said  board  and  shall 
be  opened  on  such  days  and  during  such  hours  as 
the  said  board  shall  in  its  rules  provide.  Whenever 
under  any  provision  of  law,  a  child  under  sixteen 
years  of  age  is  taken  before  a  city  magistrate  in  the 
first  division  sitting  in  any  coin*t  other  than  the 
Children's  Court,  it  shall  be  the  duty  of  such  magis- 
trate to  transfer  the  case  to  the  Children's  Coin*t. 
If  the  case  falls  within  the  jurisdiction  of  said 
court  as  herein  provided,  it  shall  be  the  duty  of  the 
officer  having  the  child  in  charge  to  take  such  child 
before  that  court,  and  in  any  such  case,  the  magis- 
trate holding  said  Children's  Court  must  proceed  to 
hear  and  dispose  of  the  case  in  the  same  manner 
as  if  it  had  been  originally  brought  therein.  The 
Board  of  City  Magistrates  shall  appoint  a  clerk  for 
the  Children's  Court  and  sucli  assistants  as  may  be 
necessary,  whose  salaries  shall  be  fixed  by  the  board 
of  aldermen  on  the  recommendation  of  the  board 
of  estimate  and  apportionment,  and  said  court 
shall  be  held,  if  practicable,  in  the  building  in  which 
the  offices  of  the  Department  of  Public  Charities 
for  the  examination  of  dependent  children  are 
located,  or  if  this  shall  not  be  practicable,  the  court 

451 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

shall  be  held  in  some  other  building  as  near  thereto 
as  practicable  to  be  selected  by  the  commissioners 
of  the  sinking  fund.  Nothing  herein  contained 
shall  affect  any  provisions  of  law  with  respect  to 
the  temporary  commitment  by  the  magistrates  of 
children  charged  with  crime,  or  held  as  witnesses 
for  the  trial  of  any  criminal  case,  or  the  existing 
jurisdiction  of  the  Court  of  Special  Sessions." 

INFERIOR  COURTS  OF  CRIMINAL  JURISDICTION. 

Chapter  20,  title  3,  section  1390,  of  the  Greater 
New  York  Charter  contains  the  following  provi- 
sion: "For  the  purpose  of  administration  of  crim- 
inal justice,  the  city  of  New  York  as  hereby 
constituted,  is  divided  into  two  divisions,  as  follows : 
The  first  division  embraces  the  Boroughs  of  Man- 
hattan and  the  Bronx ;  the  second  division  embraces 
the  Boroughs  of  Brooklj^n,  Queens,  and  Richmond ; 
and  the  Borough  of  the  Bronx  in  the  first  division 
shall  be  divided  into  two  City  Magistrates'  Court 
Districts  by  the  mayor  and  commissioner  of  police 
and  the  president  of  the  Court  of  City  Magistrates 
of  the  first  division,  in  such  manner  as  to  make 
access  to  the  courts  convenient  to  the  residents  of 
that  borough  and  otherwise  conserve  public  inter- 
ests. The  original  district  thus  to  be  made  shall  be 
known  as  the  Eighth  District  City  Magistrates' 
Court." 

(As  amended  by  Laws  of  1903,  Chap.  410.) 


452 


CHAPTER   LII. 


COURT  OF  SPECIAL  SESSIONS. 


Chapter  20,  title  3,  section  1405,  of  the  Greater 
New  York  Charter,  contains  the  following  provi- 
sion in  reference  to  the  above  court:  "The  Court 
of  Special  Sessions  of  the  city  of  New  York  is 
hereby  continued  with  all  the  powers,  duties,  and 
jurisdiction  it  now  has  by  law,  and  such  additional 
powers,  duties,  and  jurisdiction  as  are  contained  in 
and  covered  b}"  section  1419.  The  justices  of  the 
Court  of  Special  Sessions  of  the  first  and  second 
divisions  of  the  city  of  New  York  are  hereby  con- 
tinued in  office  until  the  expiration  of  the  terms  for 
which  they  have  been  appointed;  and  their  succes- 
sors shall  be  appointed  by  the  mayor  for  the  term  of 
ten  years.  There  shall  be  six  justices  of  the  Special 
Sessions  for  the  first  division  and  six  for  the  second 
division  for  a  term  of  ten  years,  whose  powers, 
duties,  jurisdiction,  and  compensation  shall  be  the 
same ;  whose  successors  shall  be  elected  in  like  man- 
ner and  who  shall  possess  all  the  requirements  for 
appointment  as  those  hereby  continued  in  office." 

(As  amended  by  Laws  of  1903,  Chap.  1.59.) 


458 


CHAPTER    LIII. 
COURTS  CODIFIED. 

Courts  of  Record — Courts  not  of  Record. 

In  this  chapter,  as  a  logical  deduction  from  the 
scheme  which  we  have  endeavored  to  keep  before 
the  reader,  we  shall  set  forth  as  officially  and  legally 
recognized  by  the  New  York  Code  of  Civil  Pro- 
cedure, the  two  classes  of  existing  courts,  both  state 
and  local,  designated  respectively,  courts  of  record 
and  courts  not  of  record. 

Chapter  448,  of  the  Laws  of  1876,  chapter  1,  of 
the  Code,  title  one,  article  first,  enumerates  the 
courts  as  follows: 

COURTS  OF  RECORD. 

( 1 )  The  Court  for  the  Trial  of  Impeachments. 

( 2 )  The  Court  of  Appeals. 

(3)  The  Appellate  Division  of  the  Supreme 
Court  in  each  department. 

(4)  The  Supreme  Court. 

(5)  The  Court  of  General  Sessions  of  the 
Peace  in  and  for  the  city  and  county  of  New  York. 

(6)  The' City  Court  of  Long  Island  City. 

(7)  The  City  Court  of  Yonkers. 

455 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

(  8  )  A  County  Court  in  each  county  except 
New  York. 

(  9  )  The  City  Court  of  the  city  of  New  York. 

(10)  The  Mayor's  Court  of  the  city  of  Hud- 
son. 

(11)  The    Recorder's    Court    of    the    city    of 
Utica. 

(12)  The  Recorder's  Court  of  the  city  of  Os- 
wego. 

( 13)  The  Justices'  Court  of  the  city  of  Albany. 

(14)  A  Surrogate's  Court  in  each  county. 

(15)  The  Court  of  Claims. 

COURTS  NOT  OF  RECORD. 

(1)  Courts  of  Justices  of  the  Peace  in  each 
town,  and  in  certain  cities  and  villages. 

(2)  Courts  of  Special  Sessions  of  the  peace  in 
each  town  and  in  certain  cities  and  villages. 

(3)  The  District  Courts  in  the  city  of  New 
York. 

(4)  The  Police  Courts  in  certain  cities  and  vil- 
lages. 

(5)  The  Justices'  Court  of  the  city  of  Troy. 

(6)  The    Municipal    Court    of    the    city    of 
Rochester. 

(7)  The  Municipal  Court  of  the  city  of  Syra- 
cuse. 

(8)  The  Municipal  court  of  the  city  of  Buf- 
falo. 

In  the  principal  text,  many  of  the  courts  here 

456 


COURTS  NOT  OF  RECORD. 

enumerated  have  formed  the  objects  of  special 
attention,  and  require  no  further  notice  at  our 
hands.  Others  of  sufficient  importance,  we  will 
now  consider  from  the  act  of  establishment  by 
virtue  of  which  they  now^  exist  and  exercise  their 
legal  functions,  giving  in  full  that  section,  or  por- 
tion of  the  legislative  enactment  constituting  the 
enacting  clause. 


457 


CHAPTER    LIV. 
CITY  COURT  OF  YONKERS. 

Beginning  with  the  courts  of  record  and  taking 
them  in  their  codified  order,  we  come  first  to  the 
City  Court  of  the  city  of  Yonkers,  estabhshed  by 
the  Laws  of  1873,  chapter  61.  Amended  act  in 
relation  to  the  estabhshment  of  the  City  Court  of 
the  city  of  Yonkers,  passed  March  8th,  1873,  sec- 
tion 1  is  as  follows:  "The  City  Court  of  Yonkers, 
as  heretofore  constituted  by  law,  and  as  constituted 
by  this  act,  shall  be  a  court  of  record,  to  and  for  all 
intents  and  purposes,  and  shall  continue  to  be 
vested  with,  and  shall  have,  the  same  jurisdiction 
and  power  within  the  city  of  Yonkers,  as  is  by  law 
conferred  upon  it  and  vested  in  said  city  by  this  act 
or  any  other  act. 

"  The  city  judge  of  Yonkers  shall  be  the  judge 
of  said  court,  and  shall  have  and  possess  all  the 
powers  and  jurisdiction  heretofore  conferred  upon 
him.  He  shall  also  have  the  powers  withSi  said 
city  of  Yonkers,  which  any  justice  or  judge  of 
the  Municipal  Court  of  the  city  of  New  York  hath 
by  law  within  the  city  of  New  York.  He  shall  also 
have  the  same  jurisdiction  and  power  as  a  justice 
of  the  peace  of  towns. 

459 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

"  The  said  City  Court  of  Yonkers  shall  have 
civil  jurisdiction  in  all  actions  for  the  recovery  of 
money  only,  where  the  amount  demanded  in  the 
summons,  or  for  which  judgment  shall  be  asked 
or  entered  or  rendered,  shall  not  exceed  one  thou- 
sand dollars,  and  the  interest  thereon  exclusive  of 
costs,  provided  that  one  of  the  parties  to  the  action 
shall  be  a  resident  of  the  city  of  Yonkers,  or  a  resi- 
dent of  a  town  in  the  city  of  Westchester  adjoining 
said  city;  or  the  defendant  shall  have  property 
within  said  city  which  may  be  taken  upon  attach- 
ment in  said  city,  and  the  summons  shall  be  served 
within  the  limits  of  said  city,  or  within  the  limits  of 
the  adjoining  town." 


460 


CHAPTER   LV. 

MAYOR'S  COURT  OF  THE  CITY  OF 
HUDSON. 


By  an  act  passed  March  8th,  1791,  and  embraced 
in  the  Laws  of  1791,  chapter  352,  seventh  clause 
thereof,  the  following  provision  is  made  for  reviv- 
ing the  Mayor's  Court  of  the  city  of  Hudson:  "Be 
it  further  enacted  by  the  authority  aforesaid,  that 
it  shall  and  may  be  lawful  for  the  mayor,  recorder, 
and  aldermen  of  the  said  city,  or  any  two  of  them, 
whereof  the  mayor  or  recorder  shall  be  one,  to  hold 
such  court  according  to  the  directions  of  the  said 
court,  as  if  said  court  had  been  regularly  held 
according  to  the  said  act,  and  adjourned  to  the 
first  Tuesday  of  May  next,  and  all  the  processes 
and  proceedings  depending  in  the  said  court  on  the 
said  first  Tuesday  of  February  in  the  present  year, 
shall  be  and  hereby  are  revived  and  continued  until 
the  said  first  Tuesday  of  May  next." 


461 


CHAPTER   LVI. 

THE  RECORDER'S  COURT  OF  THE 
CITY  OF  UTICA. 

Referring  to  the  Laws  of  1844,  chapter  319,  '*An 
act  to  estabhsh  a  Recorder's  Court  in  the  city  of 
Utica,  and  for  other  purposes,  passed  May  7th, 
1844,"  we  find: 

"  There  shall  hereafter  be  a  Recorder's  Court 
in  the  city  of  Utica;  and  a  recorder  of  said  city 
who  shall  be  appointed  in  the  manner  provided 
by  the  constitution,  for  the  appointment  of  judges 
of  the  county  courts,  and  who  shall  hold  his 
office  for  the  same  term,  and  by  the  like  tenure,  and 
be  subject  to  removal  in  like  manner,  and  shall  be  of 
the  degree  of  counselor  of  law  in  the  Supreme 
Court  at  the  time  of  such  appointment. 

"  The  said  recorder  shall  hold  a  court  of  civil 
jurisdiction  to  be  called  '  The  Recorder's  Court 
of  the  City  of  Utica,'  which  shall  be  a  court  of 
record;  the  several  terms  thereof  shall  commence 
on  the  first  JNIondays  of  January,  JNIarch,  May,  Au- 
gust and  November  in  each  year;  the  first  of  said 
terms  shall  be  on  the  fourth  ^londay  of  May  next, 
and  each  term  may  continue  for  two  weeks.  The 
said  court  shall  have  power  to  hear,  try,  and  deter- 

463 


THE  COURTS  OF  THE  STATE  OF  NEAV  YORK. 

mine  according  to  law  all  local  actions  arising  in 
said  city  and  not  elsewhere;  and  shall  have  juris- 
diction concurrently  with  the  Court  of  Common 
Pleas  of  the  county  of  Oneida  in  all  cases  of  appeals 
from  and  certioraris  on  judgments  rendered  by  any 
of  the  justices  of  the  peace  in  said  city.  In  all 
transitory  actions  where  the  defendant  resides  in 
said  citj^  said  court  shall  have  concurrently  with  the 
said  Court  of  Common  Pleas,  the  same  power, 
authority,  and  jurisdiction,  as  is  now  vested  in  said 
Court  of  Common  Pleas,  and  said  Recorder's  Court 
shall  possess  all  the  powers  and  authority  of  the 
Courts  of  Common  Pleas  of  the  several  counties 
in  this  state  in  suits  commenced  or  prosecuted 
therein  pursuant  to  this  act,  and  all  laws  regulating 
the  processes,  practice,  and  proceedings  of  the  said 
coin-ts,  and  regulating  the  removal  of  suits  com- 
menced or  prosecuted  therein,  shall  be  applicable 
to  and  binding  on  the  said  Recorder's  Court,  and 
suits  may  be  commenced  by  the  filing  and  service 
of  a  declaration  in  the  manner  now  authorized  in 
Courts  of  Common  Pleas. 

"  The  said  recorder,  with  two  aldermen  of  said 
city,  to  be  selected  by  him  from  time  to  time, 
may  and  shall  at  all  times  aforesaid,  hold  a 
court  of  criminal  jurisdiction,  which  shall  also  be 
called  the  Recorder's  Court  of  the  city  of  Utica, 
whicli  shall  have  criminal  jurisdiction  to  the  same 
extent  and  in  the  same  manner  and  with  the  same 
powers  as  the  Court  of  General  Sessions  of  tlie 

464 


RECORDER  S  COURT  OF  UTICA. 

Peace  in  the  several  counties  of  this  state,  in  the 
indictment  and  trial  of  all  offences  committed  in 
said  city,  whenever  any  bill  of ,  indictment  for  any 
offence  committed  in  said  city  shall  have  been 
transmitted  to  the  said  court  pursuant  to  the  pro- 
visions of  the  next  section,  and  the  proceedings 
therein  shall  be  in  all  respects  the  same  as  in  an 
indictment  in  a  Court  of  General  Sessions." 


465 


CHAPTER    LVII. 


RECORDER'S  COURT  OF  THE  CITY  OF 
OSWEGO. 


Laws  of  1849,  chapter  134,  containing  "An  act 
to  amend  an  act  entitled  an  act  to  organize  and 
establish  a  Recorder's  Court  in  the  city  of  Oswego," 
passed  April  12th,  1849,  section  1,  thereof,  says: 
"All  the  provisions  of  the  act  entitled,  'An  act  to 
simplify  and  abridge  the  practice,  pleadings,  and 
proceedings  of  the  courts  of  the  state,'  passed  April 
12th,  1848,  applicable  to  the  Recorder's  Courts 
therein  named,  and  such  amendments  and  additions 
as  shall  be  made  thereto,  shall  apph^  to  the  Record- 
er's Court  of  the  city  of  Oswego,  and  shall  apply 
to  all  cases  and  proceedings  now^  pending,  or  here- 
before  commenced  in  said  court." 


467 


CHAPTER    LVIII 


JUSTICES    COURT  IN  THE  CITY  OF 
ALBANY. 

Mention  of  the  above  court  is  made  in  the  Laws 
of  1821,  chapter  47,  containing,  "An  act  for  estab- 
hshing  a  Justices'  Covu't  in  the  city  of  Albany," 
passed  February  16th,  1821,  as  follows: 

"Be  it  enacted  by  the  people  of  the  state  of  New 
York,  represented  in  senate  and  assembly,  that  it 
shall  and  may  be  lawful  for  the  person  adminis- 
tering the  government  of  this  state,  by  and  with  the 
advice  and  consent  of  the  council  of  appointment, 
from  time  to  time,  to  appoint  and  continue  three 
proper  and  discreet  persons  to  be  called  and  known 
by  the  name  of  'The  justices  of  the  Justices'  Courts 
in  and  for  the  city  of  Albany' ;  and  one  other  proper 
and  discreet  person,  to  be  called  and  known  by  the 
name  of  'The  clerk  of  the  Justices'  Courts  in  and 
for  the  city  of  Albany,'  to  hold  their  said  offices 
respectively,  for  and  during  the  pleasure  of  the  said 
council;  and  the  said  commission  of  the  judges 
aforesaid  shall  issue  once  at  least  in  every  three 
3^ears;.and  in  their  said  commissions  said  justices 
shall  also  be  appointed  justices  of  the  peace  in  and 
for  the  county  of  Albany,  with  all  and  singular 

469 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

powers  in  criminal  cases,  incident  to  the  offices  of 
justices  of  the  peace. 

"And  be  it  further  enacted  that  the  said  justices 
of  the  said  Justices'  Courts  shall  have  power  and 
authority  to  hold  a  court  at  the  capitol,  in  the  city 
of  Albany,  or  at  such  other  or  proper  and  conven- 
ient place  in  said  city,  as  the  common  council  thereof 
may,  at  any  time  direct  and  appoint ;  and  such  court 
shall  be  called  'The  Justices'  Court  of  the  city  of 
Albany,'  and  it  is  hereby  declared  to  be  a  court  of 
record,  and  shall  have  exclusive  jurisdiction  in  the 
said  city,  to  hear,  try,  and  determine  all  actions 
which  are  now  cognizable  before  a  single  justice  of 
the  peace  in  said  city,  and  shall  in  all  respects  pro- 
ceed in  like  manner,  except  as  is  otherwise  provided 
bv  this  act." 


470 


CHAPTER   LIX. 


COURT  OF  CLAIMS. 

Laws  of  1883,  chapter  205,  including  "An  act  to 
abolish  the  office  of  canal  appraiser  and  the  state 
board  of  audit  and  to  establish  a  board  of  claims 
and  define  its  powers  and  duties,"  passed  April  7th, 
1883,  reads:  "  The  governor  by  and  with  the  advice 
and  consent  of  the  senate  shall  appoint  three  per- 
sons commissioners  of  claims,  who  shall  be  citizens 
of  this  state,  and  of  whom  two,  but  no  more,  shall 
be  practising  attorneys  and  counselors  of  the  Su- 
preme Court;  the}"  shall  constitute  a  Court  of 
Claims,  said  commissioners  to  be  first  appointed 
shall  be  appointed  for  the  term  of  two,  four,  and 
six  years,  respectively,  from  the  first  day  of  Janu- 
ary next  ensuing  their  appointment,  and  until  their 
successors  shall  be  appointed  and  have  qualified, 
and  shall  enter  upon  the  duties  of  their  office  on  the 
first  day  of  June,  1883.  Two  of  said  commissioners 
shall  constitute  a  quorum  for  the  transaction  of 
business ;  the  commissioner  having  the  shortest  time 
to  serve,  and  who  is  a  counselor  of  the  Supreme 
Court  shall  act  as  prosecuting  officer  of  the  court. 
Whenever  the  tenure  of  office  of  any  commissioner 
of  claims  shall  expire,  the  governor  in  like  manner 

471 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

shall  appoint  a  successor  for  the  full  term  of  six 
years.  When  a  vacancy  in  the  office  shall  occur 
before  the  expiration  of  its  term,  the  same  shall  be 
filled  for  the  unexpired  term  by  appointment  of  the 
governor,  by  and  with  the  advice  and  consent  of 
the  senate,  if  the  senate  shall  be  in  session,  or  if  not 
in  session,  the  governor  may  appoint  some  suitable 
person  to  fill  such  vacancy  the  first  day  of  January 
next  succeeding  such  appointment,  and  the  remain- 
der of  the  unexpired  term  shall  be  filled  in  like 
manner,  as  if  such  vacancy  had  occurred  during  a 
session  of  the  senate.  The  governor  may  remove 
any  commissioner  of  claims  within  the  term  for 
which  he  shall  be  appointed,  but  before  removing 
him,  he  shall  give  to  such  officer  a  copy  of  the 
charges  against  him,  and  an  opportunity  of  being 
heard  in  his  defence.  Each  of  said  commissioners 
shall  take  and  subscribe  the  oath  of  office  required 
by  the  constitution  and  file  the  same  in  the  office  of 
the  secretary  of  state,  and  sliall  receive  a  compen- 
sation of  five  thousand  dollars  per  annum,  payable 
quarterly,  and  his  necessary  expenses,  not  exceed- 
ing five  hundred  dollars  per  annum  for  each  com- 
missioner. The  persons  appointed  under  this  act 
shall  possess  the  same  qualifications  as  the  commis- 
sioner whose  place  such  person  is  appointed  to  fill." 


472 


CHAPTER   LX. 


MUNICIPAL  COURT  OF  THE  CITY  OF 
ROCHESTER. 

Laws  of  1876,  chapter  196,  section  1,  is  as  fol- 
lows :  "A  court  of  civil  jurisdiction  to  be  called  and 
known  as  the  'Municipal  Court  of  the  City  of 
Rochester,'  is  hereby  created  and  established  in  and 
for  the  said  city  with  the  jurisdiction  and  powers 
hereinafter  provided.  Immediately  upon  the  pas- 
sage of  this  act  there  shall  be  appointed  by  the 
governor,  by  and  with  the  advice  and  consent  of  the 
senate,  two  judges  of  said  court,  whose  duties  shall 
be  to  organize  and  hold  said  court  in  said  city  as 
hereinafter  provided." 


473 


CHAPTER   LXI. 


MUNICIPAL  COURT  OF  THE  CITY  OF 
SYRACUSE. 


Laws  of  1892,  chapter  342,  section  1,  reads:  "A 
court  of  civil  jurisdiction  to  be  called  and  known  as 
the  'Municipal  Court  of  the  City  of  Syracuse,'  is 
hereby  created  and  established  in  and  for  said  city, 
with  the  jurisdiction  and  powers  hereinafter  pro- 
vided immediately  after  this  act  shall  take  effect. 
There  shall  be  appointed  by  the  governor  two 
judges  of  said  court,  not  more  than  one  of  whom 
shall  belong  to  the  same  political  party,  whose 
duties  shall  be  to  organize  and  hold  said  court  in 
said  city  as  hereinafter  provided." 


475 


CHAPTER    LXII 


MUNICIPAL  COURT  OF  THE  CITY  OF 
BUFFALO. 


Laws  of  1880,  chapter  344,  section  1,  says:  "The 
court  of  civil  jurisdiction  to  be  called  and  known  as 
the  'Municipal  Court  of  Buffalo,'  is  hereby  created 
and  established  in  and  for  the  city  of  Buffalo  with 
the  jurisdiction  and  powers  hereinafter  provided. 
Immediately  upon  the  passage  of  this  act,  there 
shall  be  appointed  by  the  mayor  of  the  city  of  Buf- 
falo, by  and  with  the  consent  of  the  common  council 
of  said  city,  two  judges  of  said  court  in  said  city  as 
hereinafter  provided;  etc.,  etc." 


477 


CHAPTER   LXIIL 


INVESTIGATION  OF  CRIMINAL 
COURTS. 


To  maintain  the  proper  equilibrium  of  the  scales 
of  justice  between  the  community  and  those 
charged  with  the  enforcement  of  the  criminal  law; 
to  assure  the  swift  and  impartial  administration  of 
justice  to  high  and  low;  to  protect  the  weak  and 
helpless  from  injustice  and  oppression;  the  Legisla- 
ture has  from  time  to  time,  appointed  commissions 
to  investigate  the  efficiency  and  practice  of  the 
Criminal  Courts. 

Below  is  printed  in  full  the  last  act,  Laws  of 
1908,  chapter  2111,  passed  by  the  Legislature  for 
this  purpose.  Its  work  in  this  direction  is  still 
under  way,  and  what  its  investigations  will  devel- 
ope,  we  must  await  from  the  rendition  and  publica- 
tion of  its  final  report. 

AN  ACT  to  authorize  the  appointment  of  a  commission  to 
inquire  into  the  manner  in  which  justice  is  administered 
in  courts  of  inferior  criminal  jurisdiction  in  cities  of  the 
first  class,  including  their  methods  of  procedure,  and 
directing  said  commission  to  report  to  the  Legislature 
thereon,  with  recommendations,  and  making  an  appro- 
priation therefor. 

Became  a  law.  May  6th,  1908,  with  the  approval  of  the 
governor.     Passed,  three  fifths  being  present. 

479 


THE  COURTS  OF  THE  STATE  OF  NEW  YORK. 

The  People  of  the  State  of  New  York,  represented  in 
Senate  and  Assembly y  do  enact  as  follows: 

Section  1.  A  commission  to  inquire  into  inferior  crim- 
inal courts,  in  cities  of  the  first  class  is  hereby  established. 
Such  commission  shall  consist  of  seven  members,  two  to 
be  appointed  by  the  governor,  two  members  of  the  senate 
to  be  appointed  by  the  temporary  president  of  the  senate 
and  three  members  of  assembly  to  be  appointed  by  the 
speaker  of  the  assembly.  Such  commission  shall,  from  its 
members,  elect  a  chairman  and  a  secretary.  Any  vacancy 
in  its  membership  shall  be  filled  by  the  officers  authorized 
to  make  the  original  appointments,  respectively.  The 
total  expenses  of  the  commission  shall  not  exceed  the  sums 
hereinafter  appropriated. 

Sec.  2.  The  commission  shall  make  careful  inquiry  into 
the  manner  in  which  justice  is  administered  in  courts  of 
inferior  criminal  jurisdiction  in  cities  of  the  first  class  and 
their  methods  of  procedure,  the  system  of  records,  the 
conduct  and  duties  of  clerks,  attendants,  and  other  em- 
ployees, the  arrangement  and  condition  of  the  court 
houses,  and  all  other  matters  connected  with  the  adminis- 
tration of  justice  in  said  courts,  and,  so  far  as  in  the 
discretion  of  the  commission  may  seem  necessary,  the 
methods  employed  in  other  cities.  It  may  appoint  and  at 
pleasure  remove  any  counsel,  secretary,  or  other  employee 
deemed  by  it  necessary  for  the  purposes  of  the  inquiry, 
and  may  adopt  rules,  not  inconsistent  with  the  provisions 
of  this  act,  regulating  its  sessions,  hearings,  and  work.  It 
shall  be  the  duty  of  the  proper  local  authorities,  upon 
request  of  the  commission,  to  place  a  convenient  room  or 
rooms  in  a  public  building  in  said  city  at  the  disposal  of 
the  commission  for  the  purpose  of  its  public  sessions  and 
other  meetings. 

Sec.  3.  The  commission  shall  have  full  power  and 
authority  and  it  shall  be  its  duty  to  prosecute  its  inquiries 
in  any  and  every  direction,  in  its  judgment  necessary  and 
proper,  to  enable  it  to  obtain  information  in  regard  to  and 

480 


INVESTIGATION    OF   CRIMINAL   COURTS. 

report  upon  the  matters  referred  to  in  this  act.  The  mem- 
bers of  the  commission,  its  secretary,  counsel  and  other 
proper  employees,  when  so  directed  by  the  commission, 
shall  have  access  to  all  court  rooms,  court  and  other 
records  of  such  inferior  criminal  courts,  and  to  the  records 
of  all  departments  of  said  cities  which,  in  its  judgment,  it 
may  be  necessary  to  examine  for  the  purposes  of  this 
inquiry.  The  commission  shall  have  power  to  subpoena 
witnesses,  with  or  without  directions  to  produce  papers, 
to  administer  oaths  to  and  examine  witnesses,  and  to  com- 
pel their  attendance  by  attachment  to  be  issued  on  order 
of  the  commission  and  served  by  any  policeman  of  said 
cities ;  witnesses  shall  be  paid  the  fees  to  which  witnesses 
in  courts  of  record  are  by  law  entitled  and  shall  be  entitled 
to  all  the  privileges  and  immunities  of  witnesses  in  courts 
of  record.  The  said  commission  shall  have  such  further 
powers  as  are  conferred  by  law  upon  a  committee  of  the 
Legislature  of  the  state  of  New  York. 

Sec.  4.  The  members  of  the  commission  shall  receive  no 
compensation  for  tlieir  services,  but  the  necessary  expenses 
and  disbursements  incurred  by  them  in  the  discharge  of 
their  duties  hereunder  shall  be  paid.  The  commission  shall 
have  the  power  to  fix  the  compensation  of  its  counsel, 
secretaries,  and  other  employees. 

Sec.  5.  The  commission  shall  make  a  full  report  of  its 
inquiry  to  the  governor  for  submission  to  the  Legislature 
in  nineteen  hundred  and  nine,  or  as  soon  thereafter  as 
practicable,  with  such  recommendations  of  legislation  or 
otherwise  as  it  deems  desirable. 

Sec.  6.  The  sum  of  fifteen  thousand  dollars  is  hereby 
appropriated  out  of  any  moneys  in  the  treasury  not  other- 
wise appropriated,  for  the  purpose  of  carrying  out  the 
provisions  of  this  act.  The  expenses,  disbursements,  pay- 
ment of  counsel  fees  and  compensation  of  emplo3^ees  of 
the  commission  shall  be  made  on  the  approval  of  the  chair- 
man of  the  commission  and  the  audit  of  the  comptroller. 

Sec.  7.     This  act  shall  take  effect  immediately. 

481 


INDEX, 


INDEX. 

PAGE 

A 

Abdication  of  Dutch 51 

Abolishment  of  All  Courts 116 

Abolition  of  Assembly 106 

Aborigines  of  Manhattan  Island,  Their  Form 

OF  Government 29 

Act,  April  21,  1697 129 

"      19,  1786 242,313 

7,18015 244 

"      December  16,  1737 184 

"     February  22,  1788 314 

10,1797 243 

"     Creating  Supreme  Court,  1691 122-124 

"     March,  1797   244 

"     March  31,  1828 303 

"     May  24,  1709. 143 

"     May,  1746 143 

"     November  27,  1702. 130 

"     1741 142 

"     October  24,  1695 129 

11,1709 146 

29,1730 146 

"            "          4,1732 183 

14,1732 146 

"     September  4,  1714 145 

"     to  Settle  Courts  of  Judicature,  1691 116 

"      "         "             "        "  Justice,  1683 102 

Additional  Judge  Appointed  to  Supreme  Court  243 

"       Powers  of  Burgomasters  and  Schepens  48 

"  Supreme  Court 142 

485 


INDEX. 

PAGE 

Administration  of  Nicolls 57 

Admiralty  Court,  Among  Dutch 48,  187,  353 

"  First  Regular  Court  of 189-353 

"  UNDER  Leisler 188, 189,  353 

"  "       Sloughter 118 

"  High  Court  of 193 

"  Tryon's  Report  on 192 

Admission  of  Attorneys  to  Supreme  Court 243 

Advent  of  Dutch  on  Manhattan  Island 30 

Advocate-General  of  Court  of  Admiralty 189 

Age  Limit  of  Judges 256 

Albany,  Dutch  Court  at 50 

"        Justices'  Court  of 469 

"        Mayor's  Court  at 108 

Aldermen,  First 66,  67 

Alexander    175,  177 

Allegiance,  Oath  of 59 

"    OF  English  Inhabitants  to  Connecticut       61 

Allen,  Stephen 230 

Amendments  at  Assizes 85,  86 

Amsterdam  Chamber 31,  32,  39 

Andros 94-98 

Appeals,  Court  of 273-282,  423-432 

Age  Limit 281 

Amendments 275,  276 

Assignment  by  Governor 281,  282 

Compensation  of  Judges 281 

Constitution  of  1895 277 

Creation  of 274 

Jurisdiction  of 279 

Number  of  Judges 275 

Original  Appellate  Jurisdiction 273,  274 

Removal  of  Judges 280 

Rudiments  of 273,  274 

Vacancies,  How  Filled ,      278 

486 


INDEX. 

PAGE 

Appeals  from  Court  of  Sessions 78,  79 

"       to  and  from  governor  and  council .  ...      119 

"        "  King  and  Privy  Council 57 

Appellate  Courts,  Colonial 357 

"     Division  of  Supreme  Court  .  .  282-286,  445-448 
"  "     Judges  of,  not  to  Sit  in  Review     286 

"  "     Jurisdiction  of 285,  286 

"  "     Origin  of 283 

"     Jurisdiction  under  Dongan 106, 107 

Appointment  of  First  Judges  of  Supreme  Court     131 
"  "    Surrogate  for  New  York  City     170 

Arbitration  among  English 74 

Arbitrators  among  Dutch 431 

Ascension  of  Duke  of  York  to  Throne 106 

Assembly,  First  Call  for 102 

"         Petitions  for 70,  83 

Assistant  Justices'  Courts 310 

Assize,  Court  of 64,  69,  70,  81-88,  345,  346 

"    Abolished   87 

"    Appeals  from 881 

"    First  Session  of 69 

"    Its  Origin   81 

"    Records  of 86,  87 

Associate   Judges   of    Supreme   Court,    Commis- 
sion OF 131 

Attorney-General  of  Colony 131 

Attwood   132, 190,  359 

B 

Bail  among  Dutch 49 

Basis  of  English  Rule 63 

Bayard,  Nicholas 182 

Bellamont,  Lord 190 

Benson,  Egbert 217,  222,  243 

487 


INDEX. 

PAGE 

Bill  of  Grievance,  1728.  .  .  .  .  ................   157 

"  "     "      1735 ... 158 

Board  of  City  Magistrates 298 

Body  of  Nine  Men .38, 125,  328 

Bogert,  Cornelius 218 

Book  of  Laws 95 

Bridges,  John 133,  191 

Brooks,  Chidley 131 

Buffalo,  Municipal  Court  of 477 

Burgher  and  Schepens  Court 39,  233-240 

Burke,  Edmund 54 

Burnett,  Governor 156 

Burr,  Aaron   216,  217 


Caines,  George 244 

Capitulation  of  Dutch 51,  58,  59 

Chamber  of  Amsterdam.. 31,  32,  39 

Chambers,  John   138 

Chancellor,  First  of  State 210 

"  Successive 132 

Chancery,  Court  of 149-166,  259-266,  365-370 

"  Practice  under  Sloughter 119,  149 

Character  of  the  Chancellors 164 

"  DuANE   216,  217 

Characteristics  of  Colonial  Bench 139 

Charter,  Dongan 109 

"  OF  Liberties 102,  106 

"  "    Privileges    4^ 34 

Children's  Court r^99-301,  450,  451 

Chosen  Representatives  under  Kiefi^ 36 

Stuyvesant    ...        38 

Circuit  Courts 127,  268,  313-320,  387-392 

City  Court  of  the  City  of  New  York 295 

Clarke,  Governor 159-162 

488 


INDEX. 

PAGE 

Clarkson,  Matthew 116 

Clerk  of  Oneida  County 245 

"       "  Supreme  Court 242 

Clinton,  Governor 135,  162 

"  De  Witt 229 

Colden,  Cadwallader  D 229 

"  Lieutenant-Governor    136,  163,  360 

College  of  Nineteen 31,  34 

Colonial  Appellate  Courts •.  .  .357,  358 

"  Aristocracy    139 

"  Conditions    54 

"  Debtors    146,  147 

"  Feudalism    139 

Commission  for  Southern  District 210,  211 

"         of  Associate  Judges 131 

"  "    Chief-Justice 131 

"  "    Marines 191-192 

"  "    NicoLLs    58 

Committees,  District 207 

"  OF  Safety 206 

Common  Council  of  New  York  City 110 

"         Law  of  England 56 

"         Pleas,  Court  of 213-238,  297-404 

Compensation  of  Judges,  Colonial.  .131, 132,  139,  374 
"              "         "     OF  Court  of  Appeals.  .  .      281 
"              "    Supreme    Court    Judges,    Col- 
onial   131, 139 

Compensation      of      Supreme      Court      Judges, 

State 256,  374 

Composition  of  Court  of  Assize 69 

Constitution  of  1821 246-248,  413-416 

"  "     1846  252,253,385,388 

"    1894 254-257,  277-282 

Constitutionality  of  Judges*  Office 136 

489 


INDEX. 

PAGE 

Convention  of  Representatives  of  New  York 

State 208 

CoRNBURY,  Lord 133 

Coroners'  Courts 437-444* 

Corporation  of  New  York  City 65-67 

Correction  of  Errors,  Court  for.  .  .  .321-325,  387-392 

Cosby,  Governor 159, 174 

Council  of  Revision 209 

County  Courts 117,  287-290,  417-420 

Courts  : 

Abolishment  of   116 

Act  Creating  Supreme 122-124 

"     TO  Settle  Courts  of  Judicature 116 

Additional  Powers  of  Supreme 142 

Admiralty    48,  187-194,  353 

Albany    50, 108,  469 

Appeals    273-282,  423-432 

Appellate  Division  of  Supreme  .  .  .  282-286,  445-448 

Assistant  Justices 310 

Assize 64,  69,  70,  81-88,  345,  346 

"       Jurisdiction  of 82 

Burgomasters 39,  233-240 

"  Procedure  of 42-47 

Cessation  of  Equity 153 

Chancery    149-166,  259-266,  365-370 

Children's   299-301,  450,  451 

Circuit    127,  268,  313-320,  387-392 

City,  New  York 295 

"      of   yonkers 459 

Claims   471 

Codified    455-458 

Colonial  Appellate 357,  358 

Common  Pleas 213-238,  297-404 

Coroners'   437-444 

^  Correction  of  Errors 321-325,  387-392 

490 


INDEX. 

PAGE 

Effect  of  War  on .203-212 

Equity    149-152 

Exchequer    173-178,  359,  380 

Governor  and  Councii. 32,  187,  327,  328 

Impeachments 321-325,  393-396 

County 117,  287-290,  417-420 

Criminai. 37,  47,  48, 179-185 

Discontinued    Ill,  112 

District   296,  297 

"  Criminal    297-302 

Investigation  of  Criminal 479-481 

Judicature 107, 126 

Justices 77,  78,  305-312,  405,  412 

"         AT  Albany 469 

Magistrates,  New  York  City 449-452 

Marine    235,  405-412 

Martial    120 

Mayor  and  Aldermen 65-66.,  117 

Mayors,  Albany 108 

Hudson    461 

New  York  City 67, 109, 110,  341-344 

Municipal,  Buffalo 477 

New  York  City 296,  297 

"  Rochester    473 

"  Syracuse 475 

Opposition  to 154-157 

Orphan  Masters 48,  167, 168 

Oyer  and  Terminer.  .103,  127, 180,  313-320,  381-392 

Patroons' 33,  34,  329-332 

Police 205 

Prerogative 117, 170,  361-364 

Probate 48, 168,  361-364 

Record  of 116-118, 166 

491 


INDEX. 

PAGE 

Recorders,  New  York  City Ill,  213-238 

"  Oswego    467 

"  Utica 461 

Revision  of 158 

Sessions 73,  103,  347-352 

Special  Sessions 301,  302,  453 

Superior   303,  304,  421 

Supreme,  Colonial 121-148,  371-377 

State 239-258,  377-386 

Surrogates'    291-294,  433-436 

Town 50,  64,  102 

Cruger,  John 192 

Criminal  Courts 37,  47,  48,  179-185 

Customs  of  Colonial  Bar 139 

D 

Daly,  Chas.  P 88,  233 

Disbarment  of  Alexander  and  Smith 177 

Debate  as  to  Jurisdiction  of  Exchequer  Court     176 

Delancey,  Chief-Justice 138 

Delanoy    188,  353 

De  Witt  Clinton 229 

Discouragement  of  Litigation 145 

District  Committees  During  War 206,  207 

"         OF  Colonial  Bar 196 

Division  of  State  into  Districts 315 

DONGAN 101-114, 173 

Charter    109-111 

"         His  Report 108 

Divorce  Jurisdiction  of  Chancery 152 

DuANE,  James 163,  216-217 

"         Character  of 216 

"        Decision  of 226-227 

Dudley,  Joseph 131,  374 

492 


JNDEX. 

PAGE 

Duke  of  Yokk,  Ascends  Throne 106 

"       "        '*      Extract  from  Laws  of 71 

"       Patent  to 53 

DuNMORE,  Governor 163,  360 

Dutch,  Advent  of 30 

"        Capitulation  of 13,  15 

"        Claim  to  Territory 55 

"       Custom  of  Nominating  Magistrates.  ...        92 

"       Respect  for  Law 43 

"       Second  Occupation  and  Surrender  of,  .        93 
"        Town  Courts  among 50 

E 

Early  Chancery 151 

"       Lawyers 98 

Effect  of  War  on  Courts 203-212 

Election  of  Surrogates 291-292 

English  Basis  of  Rule 53 

"       Claim  to  Territory 55 

"       Common  Law 56 

"       Discontent  of 60 

"       Pleading  Introduced 98 

Equity  Practice  in  Court  of  Assize .*        82 

"  Inferior  Courts .149-150 

"  Jurisdiction  Relegated  to  Supreme  Court     151 

Errors,  Court  of  Correction  of 321-325,  387-392 

Evidence,  Force  of,  among  Dutch 45,  335,  336 

Exchequer  Courts 173-178,  359,  360 

Execution  of  Judgment,  among  Dutch  .  .  .  46,  336,  337 
Extract  from  Duke's  Laws 71 

F 

Fees  under  Stuyvesant 49 

"  OF  Jury 143 

"     "    Justices  of  the  Peace 77 

493 


INDEX. 

PAGE 

Feudalism  among  Colonists 139 

Filling  of  Vacancy  in  Court  of  Appeals 278 

"         "            "         "  County  Courts 289 

Final  Occupation  and  Abdication  of  Dutch  ....  51 

First  Attorney-General  of  Colony 104 

"              "                 "          "    State 131 

"     Call  for  Assembly 101 

"     Chancellor 210 

"     Colonial  Congress 112 

"     Constitution  of  State .  208 

"     Judge  of  Common  Pleas 230 

"     Mention  of  Exchequer  Court 173 

"     Regular  Court  of  Admiralty 189 

"     Rules  of  Supreme  Court 243 

"     Recorder Ill 

"     Session  of  Assize 69 

"  Mayor's  Court 67 

"            "         ''   Supreme  Court  under  State.  .  241 

"     Supreme  Court  Judge 131,  374 

"     Trial  in  Mayor's  Court 91 

Five  Dutch  Towns 50 

Fletcher,  Benjamin 131 

Force  vs.  Cunningham 47 

Foundation  of  Supreme  Court 124 

Free-holders  at  Surrogates 169 

Freedom  of  Press  Established 183 

French  Claim  to  Territory 55 

Functions  of  Assizes,  Legislative 85 

"            "  Mayor's  Court  Two-fold 110 

G 

General  Assembly  under  Sloughter 115 

Court  of  Assize 64,  69,  81-88,  345 

"          Howe    204 

"         Robertson   205 

494 


INDEX. 

PAGE 

Government  of  Ridings 72 

"  Supervision  of  Lawyers 64 

Governor  and  Council 32, 187,  327,  328 

"  "  "     Appeals  to  and  from 119 

"  Bellamont    100 

"  Burnett 156 

Clarke 154-162 

Clinton    135-162 

"         cornbury 74 

Cosby    159-174 

DONGAN 101-114, 123 

"         DuNMORE 163,  360 

"  Fletcher 131 

Hardy 162 

"  Hunter    155 

"  KlEFT    34 

"         Leisler    113, 188,  353 

"         Lovelace 70 

May   31,32 

"         MiNuiT 32,  33 

"  MONCHTON 192 

"         Montgomery 158 

NicoLLs   50,  53,  58 

*'    Sloughter 113, 115 

"    Stuyvesant 37, 168 

Tryon  165, 192,  354 

"         Van  Twiller 33 

"         Verhulst 32 

"  TO  Act  as  Ordinary 119 

Graham,  James 131 

H 

Hamilton,  Alexander 218,  222 

"  "         ON  States'  Rights  ......  222-226 

"  "         IN  Zenger  Trial 178 

495 


INDEX. 

PAGE 

Hardy,  Governor 162 

Harrison,  Richard 217,  218 

Francis   191 

Hempstead  Convention 61 

Henry  VII 55 

Hicks,  Mayor 213 

High  Court  of  Admiralty 193,  355 

HoBART,  John  Schloss 240 

Hoffman,  Josiah  Ogden 217 

Horsmanden,  Daniel 140,  147,  192,  199 

Hostility   to   Deputies  to   Hempstead   Conven- 
tion            63 

Howe,  General 204 

Hudson,  Mayor's  Court  of 461 

Hunter,  Governor 155 

I 

Impeachments,  Court  for  Trial  of.  .321-325,  393,  396 

"      OF  Supreme  Court  Judges 247 

Increase  in  Number  of  Judges 139 

"    OF  Judges'  Salary 245,  374,  375 

Indians 29,  30 

Inglis,  William 233 

Ingoldesby,  Richard   120 

Ingraham,  Judge 129 

"  Daniel  P 233 

Insolvent  Debtors'  Act 146,  147 

Instability  of  Office. 135 

Interference  by  Judges 159 

International  Law • 56 

Introduction  of  Chancery  Practice 149-151 

Investigation  of  Criminal  Courts 479-481 

Irving,  John  T 232 

496 


INDEX. 

PAGE 

J 

James,  Duke  of  Yoek 53,  71, 106 

Jauncey,  James 165 

Jay,  John 240,  Ml 

"    Peter  A 229 

Johnson,  Thomas 131 

Jones,  David 139 

Sam    217 

Judges  Elected 233 

Judges'  Fees 144 

Judges  of  Supreme  Court  Appointed 130 

"       "  "  "       Impeachment  of.  .  .  .      247 

"        "  "  "        Salaries  of  .  .  131, 140, 245 

"        "  Court  of  Appeals,  Removal  of 280,  281 

Judgment,  Execution  of 46,  236,  337 

Judicial  Powers  of  Aldermen 230,  231 

Judicature,  Court  of 107, 126 

Jurisdiction    of    Burgomasters    and    Schepens 

Court 47 

Jurisdiction  of  County  Courts 288,  289 

"    Court  of  Appeals 279,  280 

"  "    Court  of  Assize 82 

"  "    District  Courts 296 

"  "    Exchequer  Courts 173 

"  "    Patroons'  Courts 33,  34,  329,  333 

"  "    Prerogative  Courts 171 

"  "    Superior  Court 303,  304 

"  "    Supreme  Court  . 144,  252 

"    Town  Courts 50,  64, 102 

Jurors,  Oaths  of \ 307 

Jury  Fees 75 

"     Trials    75,  307,  346 

497 


INDEX. 

PAGE 

Justices'  Courts ,  ...  77,  78,  305-312,  405,  412 

OF  THE  Peace.  . 77,  305-312,  405-412 

"      "         "     Fees  of 77,85 

"      "         "     Office  Abolished    411,412 

"      "         "     Powers  of 117 

"      "         "     AFTER  Revolution 305-312 

K 

Kent,  James 217,  229,  244 

KiEFT,  Governor 34 

"       Recall  of 36 

King  and  Privy  Council,  Appeal  to 57 


Land  Titles 56 

Last  Circuit  of  Colonial  Supreme  Court 204 

Lawrence   222 

Laws,  Book  of 95 

"      Duke's 71 

Lawyers,  Early  Colonial 91,  99 

"  Fees  of 143 

Retaining  of 118, 119 

Leisler 113, 138, 184,  353 

"       Trial  of 113,  181 

Legislative  Functions  of  Assizes 82,  85 

Letter  to  Lords  of  Trade  by  Cornbury 133 

"       "       "        "       "  Tryon 192 

Lewis,  Morgan 217,  243 

Liber  Suits 183 

Liberties,  Charter  of 102,  106 

Lieutenant-Governor  Colden  . .  ; 136,  163,  360 

"  "  Nanfan 123 

"        .  '"  Nicholson 112 

Limitation  of  Courts 126 

Litigation  Discouraged   145 


498 


INDEX. 

PAGE 

Livingston,  Maturin /.  .........      229 

Robert :  .  .  . 120 

"  "         Edward    229 

«  "         R 192, 198,  214,  240,  367 

"  William  B 216 

S 218,  221 

Lovelace,  Governor 70 

Loyalty  of  Judges 198, 199 

Ludlow,  Chief-Justice 199 

M 

Magistrates'  Court  of  New  York  City 449-452 

Manhattan,  Aborigines  of 29,  30 

"  Advent  of  Dutch  on 30 

Marine  Commission 191, 192 

Court 405-412 

Maritime  Law  among  Dutch 187 

Marshal,  James 189 

Martial  Court  at  Albany 120 

Master  of  Rolls .      164 

Mathews,  David 214 

May,  Governor 31,  32 

Mayor,  Aldermen,  and  Sheriff 66 

Mayor's  Court 67,  89 

"      "  at  Albany 108 

"  "     First  Session  of 67 

"  "     Its  Jurisdiction  and  Admiralty.  .  .188 

MiLBouRNE,  Trial  of 113 

MiNuiT,  Governor 32,  33 

Minutes  of  Court  of  Chancery 165 

MoMPEssoN,  Roger 133, 191 

Monchton,  Governor ,      192 

Montgomery,       " 158, 174 

Morris,  Lewis 134, 191 

Morris,  Richard 192, 193,  241 

499 


INDEX. 

PAGE 

Municipal  Courts 296,  297 

"  Court  of  Buffalo 477 

"       "  Rochester 473 

"       "  Syracuse 475 

N 

Nanfan,  Lieutenant-Governor 173 

National  Claims  to  Territory 54,  55 

New  Amsterdam 31,  32 

New  York,  Dongan  Charter  to 109,  111 

"      Name  Changed 50,  65,  66 

"  "      Proprietary  Province 57 

"         "      Re-capture  by  Dutch 93 

"  "      Under  Martial  Law 204,  205 

NicoLLs,  Mathias 95, 104 

"         Richard 192 

Nicholson,  Lieutenant-Governor 112 

Nineteen,  College  of 31,  34 

Non-existence  of  Courts 153 

Number  of  Supreme  Court  Judges 131, 139 

o 

Oath  of  Allegiance 59,  60 

Oaths  of  Jurors 307 

Objection  to  King's  Prerogative 147 

Old  Court  Record 116-118 

Opposition  to  Court  of  Chancery 154-157 

"  "  Exchequer  Court 176 

Ordinance  of  April  3,  1704 141 

Origin  of  Appellate  Division  of  Supreme  Court     283 

"       "  Court  of  Assize 81 

"       "  Term  "  Surrogate  " 170 

Organization  of  Board  of  City  Magistrates.  .  .  .      298 

Original  Act  Creating  Supreme  Court 122, 124 

"       Appellate  Jurisdiction 106, 107,  357 

500 


INDEX. 

PAGE 

Orphans'  Court 48, 167, 168 

Oswego,  Recorder's  Court  of 467 

Oyer  and  Terminer,  Court  of 

103, 127, 180,  313-320,  387-392 

Oyer  and  Terminer  in  Foreign  Counties 314 


Palmer,  Thomas 104 

Patent  of  Charles  II 53 

Patroons'  Courts 33,  34,  329,  332 

Peace,  Justices  of  the 77,  305-312,405-412 

"     "    Their  Powers 117 

People  of  Figure 176 

Period  before  Revolutionary  War 192-195 

Petition  for  Popular  Assembly 70,  83 

"         TO  Governor  Clarke 159-162 

Pinhorne,  William 131,  189 

Phillipse   156,  175 

Pleading,  English  form  of 98 

Police  Courts   205 

Policy  of  Nicolls 60 

Political  Conditions  under  Stuyvesant 40 

"  Parties 113 

Popham,  William 360 

Popular  Petition  under  Kieft's  Administration        36 

Powers  of  Governor  and  Council 104,  327,  328 

"  Stuyvesant 37,  41 

Practice  of  Sessions  Court. 75,  347-352 

Pratt,  William 137 

Prerogative  Court 117,  361,  364 

"  OF  King  Questioned 1-17 

Presiding  Justice  of  Stuyvesant's  Court 37 

Prevalence  of  Litigation 145 

Prevoost,  John  B 229 

Privileges,  Charter  of 34 

501 


INDEX. 

PAGE 

Probate  Court 48j  168,  361,  364 

Procedure,  Appellate 119,  ISO 

"  OF  Burgomaster's  Court 42 

"  OF  Criminal  Courts 179-185 

"  Mayor's  Court    91 

Provision  to  Curtail  Law-suits 99 

Proclamation  of  Nicolls. 58 

Public  Auction 46,  47 

Purchase  of  Manhattan  by  the  Dutch 30 

PuYSTER,  Abraham  de 138 

Q 

QuAETER  Sessions 117 

R 

Radcliffe,  Jacob 229 

Recapture  of  New  York  by  Dutch 93 

Re-establishment  of  Court  of  Chancery.  .  .  .153,  154 

Recorder's  Court    Ill,  213-232 

"  "       OF  Oswego 467 

"  Utica 461 

Recorder,  Judge  of  Mayor's  Court 229 

Records  of  Court  of  Assize 86,  87 

"    Chancery 166 

"  Marriages 92 

Removal  of  Judges,  Court  of  Appeals 280,  281 

"  "         "        Supreme  Court 255,  256 

Report  of  Cornbury 133 

"  DONGAN 108 

"  Tryon    192 

Representatives,  Convention  of 208 

Republican  Convention 205 

Resolutions  against  Court  of  Chancery .154-159 

Respect  for  Law  among  Dutch 43 

Results  of  Early  Colonial  Conditions 54 

502 


INDEX. 

PAGE 

Retaining  Lawyers 118, 119 

Revised  Statutes 269-272,  413-416 

Revision,  Council  of 209 

"         of  Court  of  Chancery 158 

Rider,  John 98 

Ridings 64 

Rights  of  Dutch  Guaranteed 59 

Riker,  Richard   ; 229 

Rip  Van  Dam 159, 174, 175 

Robertson,  General 205 

Rochester,  Municipal  Court  of 473 

Rudiments  of  Court  of  Appeals 273,  274 

RuDYARD,  Thomas 104 

Rules  of  Evidence  among  Dutch 45,  335 

s 

Salary  of  Attorney-General 131 

"    "  Judges  of  Court  of  Appeals 281 

"    "  Justices  of  the  Peace 77,  85 

"   "*'  Supreme  Court  Judges  op  the  Col- 
ony   131, 139 

Salary  of  Supreme  Court  Judges  of  the  State 

245,  374,  375 

Santon,  Luke 188 

Satisfaction  of  Dutch  with  English  Dominion.  .  58,  59 

SCHOUT 32 

SCHEPENS    39,  41 

Scott,  John  Marin 240 

Secretary  of  the  Province 86,  87 

Session,  first,  of  Assize 69 

"  Mayor's  Court 67 

"  "        "  New  York  Supreme  Court  ....      241 

Sessions,  Court  of 73,  103,  347,  351 

"       "  Appeals  from 78,  350 

"  "       "  Under  Dongan 103 

"       Quarter .      110 

503 


INDEX. 

PAGE 

Sheriff's  Fees , 77 

Sloughtee 113,  115 

Smith,  Counsellor   177 

"       Melanchton 227 

"       William  (Elder) 131, 133 

"  "  (Younger)   205 

"  ON  NiCOLLS 88 

Southern  District,  Commission  for 210,  211 

Special  Sessions,  Court  of 301,  302,  453 

State  Divided  into  Districts 315 

'*      Reporter 249 

"      Sovereignty 222-226 

States  General  of  Holland 31 

States'  Rights,  Hamilton  on 222-226 

Status  of  Mayor's  Court 216 

Statutes,  Revised,  of  1829 269-272,  413-416 

Stuyvesant,  Peter   37,  38, 168 

Superior  Court  of  the  City  of  New  York  303,  304,  421 

Supreme  Court,  Colonial 121-148,  371-377 

Circuits  of 127,  128 

"  "  "        Last  Circuit  of 204 

"       of  State 239-258,  377-386 

"       "      Clerk  of 242 

"  "        "       "      First  Rules  of 243 

"        "       "      Jurisdiction  of 250-252 

"  "        "       "      Constitution   of    1821 

246-248 

Supreme  Court  of  State,  Constitution  of  1846 

250,  252 

Supreme  Court  of  State,  Constitution  of  1894 

254-257 

Surrogate,  Origin  of  Term 170 

Surrogates'  Courts,  under  Dongan.  . 169 

"       State   291-294,  433-436 

Syracuse,  Municipal  Court  of 475 

504 


INDEX. 

PAGE 

T 

Tenure  op  Office  of  Supreme  Court  Judges.  .134-137 

Territory  Granted  Duke  of  York .        57 

Three  Ridings 64,  72,  347 

Titles  of  Actions 240 

Town  Courts  under  Duke's  Laws 64 

"      Dongan 102 

"      Meetings 72,  73 

Treaty  of  1673 51 

Trial  Leisler 113, 181,  182 

"         OF  MiLBOURNE 113 

"       "  Zenger   177, 178, 183 

Tribunals  under  Stuyvesant 37-51 

Trinity  Church 138 

Troup,  Colonel 216,  222 

Tryon,  Governor 165, 192,  354 

Tudor,  John 189 

Two-fold  Functions  of  Mayor's  Court 110 

Two  Freeholders  as  Surrogates 169 

.  u 

Ulshoeffer,  Michael 232,  233 

Utica,  Recorder's  Court  of 463 

V 

Vacancy  in  Court  of  Appeals 278,  279 

"  Supreme  Court 254,  255 

"    "  Surrogate's  Court 294 

Van  Cortlandt,  Stephen 131 

Van  Dam,  Rip 159, 174, 175 

Van  Twiller,  Governor 33 

Van  Wyck,  Pierce  G 229 

505 


INDEX. 

PAGE 

Varick,  Richard 214,  215,  228 

Verhulst,  Governor 32 

Vice-Director  General 37,  328 

Vice-Chancellor 269,  367 

w 

Waddington,  Rutgers  V.  S 218-228 

Walters,  Robert 138 

Walworth,  Chancellor 262 

West  India  Company 31,  33 

Willett,  Mayor 92 

"         Marinus   229 

Wise  Policy  of  Nicolls 90 

Woodruff,  Louis  B 233 

Written  Opinions 261 

Y 

Yates,  Robert 240 

YoNKERs,  City  Court  of 459 

York,  Duke  of 53,  71, 106 

z 

Zenger .177, 178, 183 


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